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Affidavit by Daniel Ellsberg for Plowshare Activists Being Allowed a Defense of Necessity

Pursuant to 28 USC Section 1746 I swear the following is accurate and true.

  1. I am Daniel Ellsberg. I am a 1952 graduate of Harvard with a B.A. Summa Cum Laude in Economics. I received a Woodrow Wilson scholarship to student at King’s College, Cambridge University. From 1954 to 1957, I served in the U.S. Marines. In 1962 I was awarded a PhD in Economics from Harvard. I was a consultant to the Defense Department and the White House in the late 1950s and the early 1960s. In 1964 I joined the Defense Department. In 1965 I served in the State Department to serve in the U.S. Embassy in Vietnam. In 1971 I gave the U.S. Senate, the New York Times and the Washington Post copies of what have come to be known as The Pentagon Papers. I was arrested on twelve felony counts. My trial was dismissed because of government misconduct which figured in the impeachment proceedings against President Nixon. I am the author of three books, including The Doomsday Machine, which I have learned was brought onto the grounds of the Kings Bay Naval Station by the people on trial in this matter.
  2. I give this declaration to support the defense of necessity advanced by the defendants in this matter.
  3. In 1971 I was asked to be an expert witness, as a former government official, in the trial of the “Minnesota Eight,” college students and seminarians who had destroyed draft files just as Brother John Simpson did on Christmas Eve, 1970. I took copies of the Pentagon Papers with me to Minneapolis hoping to present them as documentary evidence to support my testimony that the government had been manipulating the democratic process and concealing its own law breaking by lying to the public, a situation that called for dramatic challenge of the sort the defendants had done.
  4. But the Pentagon Papers did not get into the public record on that occasion. The federal judge refused to allow my testimony on this particular point, when he heard me use the word “lie;” he had earlier warned the defense attorney that he would not entertain expert testimony “critical of the federal government.”
  5. It was precisely this sort of consciousness that seemed to me to need changing if our democratic system were to end the Vietnam tragedy, and I saw nothing other than the Pentagon Papers that might do the job. But that meant that I had to be willing to take measures that would sharply increase the risk of spending the rest of my life in jail. That willingness, at that point, was crucially renewed and strengthened in me by the example of the defendants I met and heard that day in court, in particular the seminarian and lay theologian Francis Kroncke. The immediate and direct effect of their testimony was to cause me to reexamine what more I could do to inform the public at greater personal risk if necessary and to decide to seek newspaper publication.
  6. Two years later, sitting in court at my own trial, I heard my defense lawyer refer to the appellate case United States v. Kroncke. Listening to him, I learned that the trial court’s rejection of Kroncke’s necessity defense had been upheld by the 8th Circuit on the grounds that he had failed to demonstrate a reasonable basis for inferring a direct causal chain between his action and the shortening of the war.
  7. My lawyer’s point was that my case was different from Kroncke’s; it was clear that the publication of the Pentagon Papers had already played a significant role in creating the climate of public awareness and Congressional pressure that had led the Administration, reluctantly, to negotiate the withdrawal of U.S. combat troops from Vietnam.
  8. But knowing as my lawyer did not, and the 8th Circuit Appellate Court did not, the effect of Kroncke’s actions and defense on my own decisions, I could recognize that exactly the same argument applied to his case as well. At the defense table I wrote a note to myself: “I am a link in Frank Kroncke’s causal chain.”
  9. The chain of effects was not yet ended. The disclosures that ended my trial on May 11, 1973 daily revelations for two weeks of a whole series of criminal actions that the Administration had taken against me to stop further truth telling about government policy by me or others further strengthened Congressional determination to cut off spending on American weapons and bombs that were still killing Vietnamese, even though U.S. casualties had ceased. (The first House majority vote to suspend funding on the war, for bombing of Cambodia, came on May 10, the day before my trial was finally dismissed).
  10. Moreover, these same revelations played a major part in impeachment proceedings that ultimately led to the resignation of a Chief Executive who, unlike his replacement, might well have defied the Congressional restrictions on spending in face of the upsurge of fighting in Vietnam in 1975, prolonging the war and U.S. involvement in it indefinitely. His unprecedented replacement in office, in other words, was essential, like the unprecedented cutoff of Congressional funding, to the ending of the war.
  11. Thus, the copying, and much later the publication of the Pentagon Papers can reasonably be held to have contributed, first, to the ending of U.S. casualties in Vietnam, and subsequently to the ending of the war.
  12. Both of these effects depended largely on the illegal over reaction of the Administration to my actions, in fear of the political consequences of better public information on a policy that was still being conducted largely in secret to hide its illegal, reckless and unconstitutional aspects.
  13. Congressional statutes and the Constitutional requirements of our democratic system have not, in fact, been observed in the making or implementing of Executive policy toward countries. Nor have the requirements of international law and our treaty obligations, as found by the International Court of Justice. Nor the demands of prudence, in averting an impending catastrophe, measured in terms of our experience in Vietnam.
  14. To my knowledge, in the domain of nuclear weapons policy, there has been throughout the nuclear era an equally great divergence between public desires and beliefs, public declarations of official policy, and the demands of law and prudence, on the one hand, and actual, secret governmental policy and practice on the other: with a potential for catastrophe incomparably greater.
  15. In neither of these areas have the “normal,” legal processes of democracy functioned adequately or even been permitted to operate, in terms of openness and public awareness to protect American citizens and other humans from vast, in some cases unprecedented and unlimited risks of harm.
  16. Will any of these risks to our democracy and our legal system as well as to human lives be terminated or averted without such actions, to awaken the consciences of democratic citizens, as are on trial in this case?
  17. In other contexts, then existing laws have expressed anachronistic racial or gender or class prejudices in ways that violated the fundamental spirit of the Constitution and Bill of Rights and no longer reflected an evolving public sense of justice.
  18. Yet American history reveals that it was not until widespread campaigns of civil disobedience, affecting public awareness and conscience for example, relating to women’s right to vote, civil rights, and the right to unionize that the electoral and legislative and legal processes began to function to extend and protect these rights in a way we now take for granted as fundamental to democracy. The non-violent actions that were crucial to the extension of real voting rights to women and blacks were as much a part of the democratic process as the subsequent voting.
  19. One of the sources of my own education on these matters has been the testimony by defendants and expert witnesses in trials in which I have been a participant. A notable instance was the testimony of the former Attorney General of the United States, Ramsay Clark, in a trial in Beatty, Nevada, in which I was a defendant for obstructing the entrance to the Nuclear Test Site. Speaking to the same issue I have addressed here, the actual causal effects of civil disobedience as shown by past experience, he testified on its effects on policymaking during his own time in office.
  20. Clark told the judge that in March of 1965, 1% of blacks in the state of Alabama were registered to vote. That was the month in which blacks held a march from Selma to Montgomery, in which hundreds of participants were arrested and Violet Liuzzo was killed. Clark, as Attorney General, was ordered to go to Selma to take charge of the National Guard, called out to protect a later march in which Martin Luther King participated. By the end of that later march, he said 2% of blacks were registered “not very many, but a 100% increase in the course of the month.”
  21. Testifying under oath as an expert witness, the former Attorney General stated: “Without the marches” which, in Alabama at that time, were treated as civil disobedience “the Voting Rights Act of 1965 would never have passed.”
  22. In my understanding as both a student of and participant in such campaigns, in none of these cases is the public movement, and specifically the tactic of civil disobedience, properly to be seen as an “alternative” to, or a substitute for, the more traditional and unarguably legal processes of our political system: but as a sometimes necessary complement to such processes, stimulating and reinforcing them in a way that is not infrequently essential to achieving urgent, legitimate public ends.
  23. In my own experience, participants in civil disobedience virtually never conceive of these particular actions as the sole effective means, by themselves, of averting specific harms, or as sufficient in themselves to do so. The issue, from the perspective of these actors, is not whether other approaches, unchallengeably legal, exist to further their aims, but whether these unquestionably necessary approaches, by themselves and excluding dramatic campaigns of civil disobedience, are adequately effective, whether they can “work” or work in time to avoid great harm without the historically proven catalyst of committed, conscientious, risk taking exemplary action.
  24. These considerations bear on two other elements of the necessity defense, the “lack of legal alternatives” and the “imminence” of the harms to be averted. Again, I speak from my own experience, but not only mine, in saying that it is the perceived insufficiency of other means, by themselves not their unavailability or irrelevance that impels one to add, in some circumstances, tactics that risk arrest to a program of social action. And the urgency of such means reflects the prolonged time required to mobilize political efforts perhaps measured in months or years to avert deaths and injuries that will not be averted at all without campaigns that include these dramatic elements.

I swear the above is true and correct to the best of my knowledge.

[See accuracy.org news release “Ellsberg: Plowshares Action Justified to Prevent Omnicide” on this issue.]