The death of Daniel Ellsberg has focused attention on whistleblowing, his courage, and press freedom. Tributes have recounted the story of how he went above the law for what he thought was right, and how two important newspapers published the Pentagon Papers, also at considerable risk. Behind Ellsberg’s whistleblowing was his profound belief that the Vietnam War was wrong. A strong hawk at the beginning of the War, Ellsberg came to believe that the War was misguided; he thought he was justified in photocopying the Pentagon Papers and having them made public.
Ellsberg’s vindication was extremely powerful. A federal judge dismissed charges against him because he had been harassed by the Nixon Administration. The Judge, William M. Byrne, dismissed all charges because of “gross prosecutorial misconduct” such as illegally entering Ellsberg’s psychiatrist’s office and illegally wiretapping him. The Judge said the government’s actions were so severe as to “offend the sense of justice.”
As for the Papers publication, in an unsigned opinion, with six justices concurring, the Supreme Court quoted two lower court decisions in confirming that the New York Times and the Washington Post were right in publishing the Papers.
“Any system of prior restraints of expression comes to this court bearing a heavy presumption against its constitutional validity … the government ‘thus carries a heavy burden of showing justification for the imposition of such a restraint’” before simply concluding:
“The District Court for the Southern District of New York, in The New York Times case, and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit, in The Washington Post case, held that the government had not met that burden. We agree.”
The federal judge’s decision as well as the Supreme Court’s ruling confirmed justice on several levels. Ellsberg was, the courts confirmed, right to photocopy the Report. He was also right in giving copies to the press. And the newspapers were right to publish the report.
During his lifetime, Daniel Ellsberg became a hero for those who thought the Vietnam War was an unjust war. The Report, they believed, justified their opposition to the war.
Ellsberg’s photocopying the Report, the press making it public and the courts’ decisions all can be summarized as just.What cannot be summarized is what justice meant or means.
We can look at some of understanding justice on several levels. First, the subject had a moment of academic glory in the 1970s and 80s. Political philosopher John Rawls’ 1971 academic best-seller A Theory of Justice dealt directly with the concept of justice. Rawls’ work started an academic cottage industry, but it remained popular only in academia. It had no public impact since its basis was an imaginary veil of ignorance. A similarly academic work can be found in Professor Michael Walzer’s Just and Unjust War, published in 1977. Walzer, highly influenced by the Vietnam War, focused on the tradition of just war, not on justice as such.
Also academic, but with a more popular understanding of justice, is Professor Michael Sandel’s course on justice at Harvard. It has traditionally been the most popular course at Harvard with around 1,000 students as well as being offered online. Sandel’s is very different from Rawls’ theoretical approach or Walzer’s emphasis on the just war tradition. Sandel takes concrete examples to encourage students to think about what they or political leaders should do in given situations. Sandel’s is a more situational approach than Rawls’ hypothetical or Walzer’s analysis of the just war tradition. Wherever Sandel teaches, even in China, he is enormously successful with college-level students.
Why so? Why is justice so appealing to college-educated students? Although children often demand fairness at very young ages, and parents are often requested to justify their actions in the name of fairness, justice and fairness are not simple to explain to children or anyone else. It is not a simple subject.
There are, however, popular ways of discussing what is just. On a personal level, most of what the NYU Professor of Philosophy Kwame Anthony Appiah answers in questions posed to him in his New York Times The Ethicist column revolve around fairness. Some are quite amusing such as: “Can My New Boyfriend Stop My Ex From Visiting Our Dog?”
But you will ask, beyond the academic and personal, isn’t justice what courts are supposed to decide? Isn’t that what students study in law school? Perhaps, but courts are not always just. That’s why there are appeals courts which often overturn lower court decisions. Courts often deal with the technical aspects of the law. They apply what the law says without going deeper into why the law was written the way it was.
There is, in fact, a difference between the writing of laws and their application and the theory of what is behind the law. Jurisprudence is the field that studies the theory or philosophy behind the law.
“Jurisprudence is the silent and controlling partner in every judge’s and every lawyer’s reasoning about law,” Professor Scott Brewer writes in his introduction to his course at Harvard Law School. “A judge, a lawyer, a citizen, a law student cannot answer any legal question without a sufficiently clear sense of what law is— as distinct, say, from religion, or hard science or social science— and what it is that constitutes legal reasoning and argument…” (italics added)
To return to Ellsberg and his relation to justice and fairness: The concept of whistleblowing is closely tied to justice. People whistleblow because they see something they think is unjust, whether it be above the law or not. An individual whistleblower is making a subjective decision about what is right. In Ellsberg’s case, his decision was deemed just by several courts. Ellsberg is celebrated because he went against popular notions of what was right to make public what he thought was just. And his subjective sense was confirmed.
For those interested, Daniel Ellsberg’s papers have been acquired by the University of Massachusetts – Amherst and will be managed by its Special Collections and University Archives at the W.E.B. Du Bois Library there.
For more information about the Daniel Ellsberg archive, contact:
Professor Christian Appy
appy@history.umass.edu
University of Massachusetts
Daniel Ellsberg Archive Project
This content originally appeared on CounterPunch.org and was authored by Daniel Warner.