Indiana Law Review
This article was written for the Indiana Law Review’s 2011 annual symposium entitled, “What If? Counterfactuals in Constitutional History.” As the article’s title suggests, it considers the impact of Daniel Ellsberg’s decision to leak the Pentagon Papers to the New York Times. The article takes some liberty with the topic of constitutional counterfactuals. Despite its author’s vast enjoyment of several classic movies and television episodes featuring parallel worlds, the article does not build a counterfactual universe in which Daniel Ellsberg never leaked the Pentagon Papers. It hints at such a world indirectly, however, by considering the difference that Ellsberg’s leak made in the universe that we do occupy. Specifically, the article considers the impact of the Pentagon Papers leak on public and judicial attitudes toward secrecy-based assertions by the executive branch. The term secrecy-based assertions covers two types of claims: claims that information must be kept secret to protect national security, and claims that the public would understand and bless the government’s actions if only the public could see the information that they are not permitted to see. This article argues that the Pentagon Papers leak and its aftermath helped set in motion a process of social learning - albeit a non-linear one with plenty of limits and setbacks - that continues to this day on the dangers of excessive deference to secrecy-based assertions by the government.
Heidi Kitrosser, What If Daniel Ellsberg Hadn't Bothered?, 45 Ind. L. Rev. 89 (2011), available at https://scholarship.law.umn.edu/faculty_articles/49.