In Their Own Defense

On at least four occasions, the judge presiding over Criminal Case 9373 had to admonish observers for nodding off to sleep. The United States of America v. Daniel Ellsberg, Anthony Russo Jr.. which once held out the promise of a landmark debate over the public's right to know and the Government's need to be secretive, had instead turned into a tedious minuet, pivoting for the better part of twelve weeks around the strictly legal aspects of the case. Witnesses for the prosecution testified about fingerprints on the covers of the Pentagon Papers that allegedly proved theft by the defendants, and about blocks of text within that allegedly proved a breach of national security. But the larger moral issues behind the release of the Pentagon's Viet Nam War study were not heard in the trial until last week, when Ellsberg and Russo took the stand for the first time in a packed Los Angeles courtroom.

Russo, 36, testified first. A balding, horn-rimmed aeronautics engineer, he explained that, when he was first in Viet Nam as a Rand Corp. researcher, he had believed Viet Cong cadre to be "in doctrinated fanatics." But his gradual conversion to an antiwar activist was brought about in part by an interview with one memorable Viet Cong prisoner. Russo told how the prisoner vowed that "he would never give up, no matter how badly they tortured him. It was here I learned the difference between in doctrination and commitment. He was committed." Russo told the jury: "It was very moving -I came to know the Viet namese people." The next moment, he slumped forward and wept.

Honor. When he recovered, he admitted to -and defended -his role in Xeroxing the Pentagon Papers, which Ellsberg later gave to the press. Asked which of the 19 documents in the case he had copied, Russo shot back: "I could have Xeroxed all of them. I'm not denying anything. It's an honor to have Xeroxed the Pentagon Papers." When Prosecutor David R. Nissen asked Russo whether he was aware that access to the papers was on a strict "need to know" basis, Russo responded: "I was aware of Rand's need to know rules. But I thought that the American people had a real need to know."

Later Ellsberg told of his own con version. He had come to Viet Nam a "superhawk," but changed when con fronted with the cavalier shooting of villagers from U.S. helicopters ("like herding cattle with a pickup truck in Montana"), the corruption of South Vietnamese officials, the squandering of U.S. tax money, the wanton burning of villages, and the deliberate obfuscation of the facts by U.S. Government and military officials. At one point, Ellsberg told how South Vietnamese officials sold U.S. supplied cement on the black market, and made AID-financed schools out of little more than sand and water. "If you took a coin, you could scrape away the wall," he said. Then, after 3 1/2 hours on the stand, an exhausted Ellsberg walked to his defense table, plopped into a chair and wept.

Throughout the week's proceedings, Ellsberg's chief counsel, Leonard Boudin, 60, also showed wear. Though a veteran of the trials of Dr. Benjamin Spock and the Rev. Philip Berrigan, Boudin has always been more at home with appellate procedures than in trial law, and he faltered in his questioning, so much so that Judge William Matthew Byrne himself frequently took up the line of inquiry. Reliant on a heart pacemaker, Boudin finally was ordered to rest by his doctor. The proceedings were suspended until this week, when Ellsberg is expected to take the stand again.

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