The Ellsberg Tangle

Despite all the original excitement about the Pentagon papers, the trial of Daniel Ellsberg and Anthony Russo opened in an atmosphere of ennui. The spectators' gallery in the Los Angeles courtroom had empty seats. One after another, the prospective jurors said that they did not really remember what the Pentagon papers said and that they did not think much about Viet Nam anyway. Then no sooner had a jury been seated than the trial was brought to a total halt by the seemingly unrelated problem of Government eavesdropping. In a curious way, though, the argument over eavesdropping mirrored the basic questions of the whole case: who has what right to keep what information secret? Who has what right to know such information?

Ellsberg had originally sought to inform the public about official deception in the evolution of U.S. policy in Viet Nam (see BOOKS). The Government first challenged the press's right to publish copies of the papers received from Ellsberg, but the Supreme Court rejected that challenge. The Government then charged that Ellsberg and Rand associate Russo collected and disclosed secret material in violation of statutes on conspiracy, theft and espionage.

Just before the trial opened, however, Judge William Matthew Byrne disclosed that a Government wiretap had happened to overhear a conversation involving one of the lawyers or consultants on the defense team. "Serious, shocking, shameful," declared Attorney Leonard Boudin. The defense demanded to know who had been overheard and what had been said.

The rules on Government wiretapping are now rather complex, but the gist of the matter is this: the Supreme Court has declared that if there has been any illegal eavesdropping involving a defendant, he must be given the details of what was overheard. It has also said that it is illegal to tap without a warrant --at least in cases that do not involve foreign intelligence.

The eavesdropping at issue last week was admittedly done without a warrant, but the Government claims that it was a "foreign" tap, that the defendants themselves had not been overheard, and that the intercepted conversation had nothing to do with the Ellsberg case. (Boudin represents the government of Chile in certain of its affairs, and some of his 15 colleagues in the trial have had associations with North Viet Nam.) Although the Supreme Court has not explicitly ruled on "foreign" taps, the prosecution claims that they are legal and therefore do not have to be disclosed. Judge Byrne himself studied the tapped conversation and agreed with the Government that it was irrelevant to the case.

But defense lawyers insisted that the judge had no right to make such a ruling without showing the information to them. William O. Douglas, the Supreme Court Justice responsible for that area of the country, agreed to stay the trial until the full court could consider the issues. At that point, U.S. Solicitor General Erwin Griswold moved in and asked the Supreme Court to vacate the stay and let the trial proceed. A long delay after the jury had been impaneled, he said, might result in the defendants' going free because of the rules on double jeopardy.

The trouble was that the Supreme Court was in recess until October. When the Justices were polled by telephone they unanimously declined to overrule Douglas and return to Washington for a special summer session. Thus the trial was postponed until autumn at the earliest.

To Ellsberg, who said he was "mentally ready" to go on trial and eager to publicize his case, the strenuous defense efforts for delay at first seemed somewhat pointless, but Co-Defendant Russo was delighted. "In an all-out fight with the Government," he said, "you score what points you can."

"Everyone thought we lost, but I was terrific," said Lawyer Boudin to his wife on the phone. He had just finished arguing the defense case before Justice Douglas in a small federal courtroom in Yakima, Wash., not far from Douglas' wilderness vacation retreat--and, as it later turned out, he had succeeded in persuading the Justice.

Boudin is technically just one of Ellsberg's lawyers, but he has tended to dominate the defense. He does cut a picturesque figure, always in a rumpled suit, his gray-blond hair tousled and his courtroom table stacked with cluttered piles of books and memos. Occasionally he ambles around the court, one fist jammed in a coat pocket; at 60, he needs the periodic exercise because he wears a heart pacemaker.

But Boudin also dominates because he has built a reputation as one of the best appeals lawyers in the country. And he has recently been doing trial work to help fight the prosecutions of Dr. Benjamin Spock and Philip Berrigan. In the Ellsberg-Russo case, he is thus waging what to him is the third battle of Indochina.

Long before Viet Nam, however, Boudin was combating officialdom with what he calls "an 18th century sense of the rights of the individual against the government." It is a sense that he brings to every courtroom. "When I arrived here on the first day," he says, "I found the door shut and locked and ringed with U.S. marshals, and there were the Government lawyers already sitting at the table inside. That's exactly the point that bothers me. It won't have the slightest influence on this case, but the thought that they considered it their courtroom..."

Although Boudin says he "slid by accident into the law," his progress was almost inevitable. His father was a real-estate lawyer in Brooklyn; young Boudin spent his Saturdays clipping law journals in his father's office. Following law school at St. John's, he joined his uncle's firm, which specialized in trade-union cases. He had just set up his own practice when the cold war started, and Boudin undertook to defend union clients against charges of Communist influence. Did he have ideological reasons? "Not at all," he says. "I not only was never a Communist but I was never a radical, and I'm still not. The law often was and still is an intellectual game for me. I have a basic cynicism for any political line. I don't know where the truth lies."

Most of Boudin's union clients left him after he was assigned by the trial court to represent Judith Coplon, a Justice Department analyst charged with espionage for the Soviet Union. (Ironically, her case, like the Ellsberg impasse last week, turned on a wiretap; Boudin won the Coplon appeal because authorities had eavesdropped on lawyer-client conversations.) Filling the gap in his practice, he began to make a name for himself in a series of passport cases: he diligently represented such noted left-wingers as Corliss Lamont, Paul Robeson and Rockwell Kent in proceedings that finally resulted in a 1958 Supreme Court decision ending State Department restrictions on international travel by leftists. All told, Boudin has argued before the Supreme Court 15 or 20 times (the late Justice John Harlan once listed him among the ten ablest lawyers to appear before the court).

Despite his activity in radical causes, Boudin remains an independent. "I don't like dogmatism," he says. "I don't like organization. I don't like public or private bureaucracy, and the whole trouble with left-wing movements is so much private bureaucracy." Nor has he limited his political practice (which earns him no more than about $30,000 a year) to left-wing cases. He also won the reinstatement of Julian Bond to the Georgia legislature, and he overturned the ban on Henry Miller's Tropic of Cancer.

The paradoxes of his life have been strangely reflected in his two children. His son Michael, 33, practices with one of Washington's most prestigious law firms; his daughter Kathy, 29, allegedly became a Weatherwoman and was seen leaving a Manhattan town house that had just been destroyed in a 1970 bomb explosion. Kathy is still on the FBI's Wanted list. Boudin declines to talk about it.

Although Boudin has spent a life devoted to the law, he remains skeptical of some of its major institutions--particularly the courts. Citing the "deference to the Executive, the unwillingness to decide issues relating to the legality of the war," he says: "All of this makes me less sure that the law is the answer I once thought it was." He rejects the violent alternative apparently chosen by his daughter, and has almost equally strong doubts about the process of education (though he lectured at Harvard last year). "While I see no alternative but to continue the process," he says, "I will say that I am not terribly hopeful. I think we have to keep on plugging. I guess I like what I'm doing. Who the hell knows?"

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