Mises Wire

Arbitrary Use of Power: Punishing Those Who Expose Not-So-Secret Government Secrets

Most readers might not remember Daniel Ellsberg, but for those of us who came of age during the Vietnam War, the maelstrom that formed around him and his actions helped to define that era. Ellsberg, of course, is famous because he leaked a number of internal government documents called the Pentagon Papers in which the writers expressed skepticism about the chances for U.S. success in the Vietnam War.

Ellsberg chose to leak to the New York Times and the Washington Post, which at that time (as well as today) were the print voices of the political and academic elites. By 1971, when the papers printed some of the documents (after the U.S. Supreme Court voted 6-3 to allow publication), the war was well out of favor with the Democratic Party – whose politicians had started the war in the first place – and it had been three years since Walter Cronkite denounced it on his evening broadcast.

The Richard Nixon administration, which had inherited the war and expanded it into neighboring Cambodia, charged Ellsberg with violating the Espionage Act of 1917, but the courts dismissed the charges in 1973 because of government misconduct. Ellsberg has been a free man since then and has been a celebrity in elite circles. (I saw him at a 2007 conference sponsored by the Future of Freedom Foundation. We gave him a standing ovation.)

Jack Texiera, the Massachusetts Air National guardsman who is accused of leaking U.S. Government documents relating to the Ukraine war and other U.S. interventions elsewhere, is unlikely to enjoy Ellsberg’s celebrity status with the progressive elites. Like Ellsberg, he is charged with violating the Espionage Act of 1917; unlike Ellsberg, the recipient of the allegedly leaked documents was a website that clearly does not have favor of the NYT or the Post.

Independent journalist Matt Taibbi writes:

On a flight, reading about the FBI’s arrest of Jack Texiera, already dubbed the “Pentagon Leaker.” A quick review reveals multiple media portraits already out depicting him as a dangerous incel who shared his wares on Discord, a social media app where “racist memes” and “offensive jokes” flourish. 

Taibbi adds that the Post labeled him as a “gun enthusiast” as a means to further discredit him. Unlike Ellsberg, Texiera will not have Ivy League law professors representing him, nor will the editorial pages of the nation’s elite newspapers defend him. Indeed, the NYT has boasted about how it found the identity of the alleged leaker before government authorities did. David French, who recently became a columnist for the NYT and since has used his new journalistic perch to shill for unlimited American involvement in the Ukraine war, has condemned both Texiera and his defenders on Twitter, calling them “repulsive.” The alleged leaks, declares French, “can do immense damage.” Tom Nichols in The Atlantic has declared him to be a “narcissist” endangering America.

In the past, elite media has defended leaks of government documents, especially when it is clear that government officials have been lying. Unfortunately, in this new age of progressive media, the press now plays detective for the government if the leaks come from the “wrong” people. Taibbi writes:

The New York Times and Washington Post trumpeted roles in helping identify Air National Guardsman Teixiera for the FBI. “We’re delivering him to you with his head on a platter,” is how Glenn (Greenwald) put it.


Of course, one must ask what it means to be “endangering America.” The Pentagon Papers did not change the outcome of the war; indeed, by the time they were released the Nixon administration already was looking for a “peace with honor” way out of the conflict. If anything was endangered, it was the reputations of members of the Lyndon Johnson and Nixon administrations that had lied to Americans about the conduct and outcomes of the war. 

Likewise, the document leaks that came from Chelsea Manning, Edward Snowden, and Julian Assange did not place ordinary Americans – or even American military personnel – in danger of their lives. Instead, they exposed how American politicians, military, and executive branch officials have lied to Americans, all the while claiming their lies were necessary to “protect” America.

Before going further with the government’s case against Texiera, we also should address the fact that members of the national security establishment have been leaking documents for years, but that is considered good because the political goals of the leakers are seen to be sacrosanct. Taibbi writes:

The intelligence community has itself been massively interfering in domestic news using illegal leaks for years. Remember the “Why Did Obama Dawdle on Russia’s Hacking?” story by David Ignatius of the Washington Post in January of 2017, outing would-be Trump National Security Advisor Michael Flynn as having been captured in intercepts speaking with a Russian ambassador? That was just the first in a string of leak- or intercept-based news stories that dominated news cycles in the Trump years, involving everything from conclusions of the FISA court to supposedly secret meetings in the Seychelles.

When civilians or whistleblowers like Edward Snowden, Julian Assange (in jail for an incredible four years now), Reality Winner and now the “Discord Leaker” bring leaked information to the public, the immediate threat is Espionage Act charges and decades of jail time. When a CIA head or a top FBI official does it, it’s just news. In fact, officials talk openly about using “strategic leaks” as a P.R. staple. In a world where media currency is becoming the ultimate power, these people want a monopoly. It’s infuriating.

The sad irony continues as the Post editorial board, which now apparently believes that democracy needs darkness – or at least properly-orchestrated media blackouts from the truth – has denounced the leak in an editorial. There will be no protections for Texiera, no appeals from the media, as nothing is permitted to stand in the way of the Biden administration’s proxy war against Russia. Writes Jordan Schactel:

It seems there is a concerted effort in the legacy press to paint a personal picture of Mr. Teixeira as an anti-government Trump-loving right winger who is undeserving of whistleblower protections. It’s not that he’s harming the reputation of the Current Thing . . . He’s religious! He loves guns! He’s a “MAGAt!” Blue Anons, activated!

In other words, Texiera does not fit into the favored media category and so he must face the full wrath of the government for allegedly violating the Espionage Act (Section 793 of the Federal Code) and Section 1924, unauthorized removal of classified documents. (Note that both Biden and Donald Trump have allegedly violated Section 1924, but it is doubtful that either will be perp-walked for their transgressions.)

Taibbi further notes that not long ago, the New York Times was willing to expose much more sensitive material and even partner with Julian Assange, something that one cannot even imagine today:

For the Times, this symbolized a complete turnaround from just 12 years ago, when it partnered with Julian Assange to print “The War Logs,” a far more damaging set of leaks. Just one of those Wikileaks-based stories, “Pakistan Aids Insurgency in Afghanistan, Reports Assert,” was probably more impactful than all the Teixeira docs combined. It described how officials in Pakistan, an ostensible American ally receiving over $1 billion from the U.S. for aid in fighting “militants,” was holding “secret strategy sessions” with the Taliban, to help organize “networks… that fight against American soldiers.”

As we saw with Alvin Bragg’s indictment of Donald Trump, prosecutors can slice up charges to create a large number of separate “crimes,” and then insist that the guilty party serve each sentence consecutively, so theoretically Texiera could be given an effective life sentence. A violation of Section 793 can carry a maximum 10-year sentence, while violations of Section 1924 have prison sentences of up to five years. You do the math.

As Texiera disappears into the maw known as the U.S. Bureau of Prisons, one can be sure he will be held without bond and will be spending much of his pre-trial (and probably post-trial time as well) in solitary confinement. Medical and psychological researchers have documented the pernicious effects of solitary confinement, but one doubts Texiera will receive much sympathy on that front, especially from the groups that usually denounce such punishments, but are silent when someone from the wrong side of the political and social tracks is the victim.

Texiera is charged with the same “crime” that is regularly committed by those favored by American political, media, and academic elites. Ironically, according to the New York Times, the information that he leaked might prove helpful to the Ukrainian cause, since it points out the dire situation that Ukraine faces at the present time:

…in Kyiv, Ukraine’s capital, this past week, there was little palpable alarm about the scores of pages of classified documents that have surfaced in one of the most remarkable disclosures of American secrets in the last decade. In fact, some welcomed the leak, hoping that it would emphasize what President Volodymyr Zelensky has been saying for months — that Ukraine urgently needs more ammunition and weapons to expel the Russian forces.

“From many points of view, this leak is really useful, and good, even I can say good for Ukraine,” said Oleksiy Honcharenko, a member of Parliament in the opposition European Solidarity party.

One would think, if one believes the “Democracy Dies in Darkness” sermons we hear preached by American elites, that the Biden administration and the Pentagon should be telling people the truth about how far-reaching American involvement has been in this proxy war, especially since Russia has numerous nuclear weapons. But those folks really don’t believe their rhetoric. Instead, Jack Texiera will soon disappear for good into prison, and, like Julian Assange who still languishes without trial, their names will be forgotten.

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