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How did Daniel Ellsberg avoid a conviction?

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Daniel Ellsberg leaked the Pentagon Papers about the Vietnam War to the press in 1971. Ellsberg’s website says that his "trial, on twelve felony counts posing a possible sentence of 115 years, was dismissed in 1973 on grounds of governmental misconduct against him, which led to the convictions of several White House aides and figured in the impeachment proceedings against President Nixon."

Whether or not federal law enforcement folks and federal prosecutors have learned from their failure to convict Ellsberg, it appears that the federal government today pursues and prosecutes leaks of confidential government information (conveniently classified as confidential by the executive branch, itself) with a vengeance, unless Obama changes course. As a result, Scooter Libby was prosecuted, followed by Bush’s commutation of his sentence. Currently, the feds are prosecuting two officials of the American Israeli Public Affairs Committee for allegedly leaking confidential government information.

I believe in erring on the side of disclosing too much government information to the public than too little, and that there is overprosecution for leaks of confidential government information. The federal government classifies too much information as confidential in the first place. Such overclassification is a relic of the Cold War and today often is publicly explained in the name of countering terrorism.

In the current AIPAC federal prosecution against Steven J. Rosen and Keith Weissman, the prosecution wants as little classified information to get into the jury’s hands as possible. (See the case docket.) However, how can the defendants get a fair trial if the defense does not have the opportunity to present the jury with extensive relevant information — both classified and not — concerning this prosecution? If the prosecutors do not want the jury to have such information, they always have the opportunity to dismiss the prosecution.

Through an interlocutory appeal brought by the prosecution, last Tuesday, the Fourth Circuit affirmed trial Judge T.S. Ellis, III’s (E.D. Va.) action to give a partial loaf to the defense and a partial loaf to the prosecution on how much classified information the jury will be permitted to receive. Underlining the confidentiality issues involved in this prosecution, the Fourth Circuit’s opinion is riddled with the phrase "[redacted]", having excised numerous words and phrases of its opinion from public view. U.S. v. Rosen and Weissman, ___ F.3d ___ (4th Cir., Feb. 24, 2009).

All this government classification of confidential information helps keep Wite-Out profitable, but does not serve the cause of open and democratic government.