In a December 14 letter to the Wall Street Journal, Professor John Kincaid pointed out, contrary to other commentators on a possible prosecution of Julian Assange of Wikilaeks, that there is a disturbing precedent in the novel charges brought against Daniel Ellsberg and Anthony Russo for leaking the Pentagon Papers in 1971.

“They were charged,” he wrote “with conspiring to defraud the federal government of its lawful governmental function of controlling the dissemination of classified documents, violating the Espionage Act (with the government contending no need to prove intent), and stealing U.S. property (the physical documents and arrangement of the words on their pages).”

“They were not indicted for releasing the Pentagon Papers to the press,” he continued. “Prosecution was limited to their procuring and photocopying the documents in 1969.”

“The contested legal issues underlying the unprecedented charges went unresolved by the federal courts because, at the eleventh hour, Judge William Matthew Byrne Jr. dismissed the case due to ‘improper government conduct’ (e.g., the ‘plumbers” rifling of Mr. Ellsberg’s psychiatrist’s office).”

Prof. Kincaid managed the legal defense of Ellsberg and Russo in the Pentagon Papers Trial (1972-73) and served as Vice President and Co-Treasurer of the Pentagon Papers Fund for the Defense of Human and Civil Liberties. “The Ellsberg-Russo prosecution posed grave threats to civil liberties and constitutional government,” he said, “and a prosecution of Assange will likely pose similar threats even though the Ellsberg-Russo leaks and the Wikileaks’ revelations are very dissimilar in content and behavior.