“If in fact he goes ahead and prosecutes Julian Assange, he will pass Nixon. He’s close to Nixon now,” the former general counsel f0r the New York Times, James Goodale, said of President Barack Obama on “Democracy Now!”
The Justice Department’s seizure of the Associated Press’ phone records is a “good example of something that Obama has done but Nixon never did. So I have him presently in second place, behind Nixon and ahead of Bush II,” he added.
Goodale led the legal team that made the case in the courts in 1971 that the Times had the right to publish the Pentagon Papers, top secret Defense Department documents that exposed US policies around the Vietnam War and were provided to the news organization by Daniel Ellsberg.
In his book, Fighting for the Press: The Pentagon Papers & Other Battles, Goodale presents a first-hand account of what happened as lawyers sought to defend the newspaper from the government. He describes how Max Frankel, foreign reporter for the Times, informed him he had “documents related to the Vietnam War.” He did not, at first, see them but was confronted with the issue of whether it was legal for the press to publish classified information.
Goodale details how he informed Harding Bancroft, the executive vice president of the Times, about a “secret newsroom project” involving a “history of the Vietnam War” that was classified “top secret sensitive.” Bancroft became “visibly upset.” He said the Pentagon Papers could be the “most important event in the history of the Times” and it would be particularly “bothersome” if the Times “published top secret documents.”
He spends a chapter on his first glimpse at the Pentagon Papers. There were forty-seven volumes.
…According to Volume One, North Vietnam had been promised twice there would be elections for all of Vietnam so it could determine its own future. While Vietnam was a French colony, the French had made an agreement in 1946 for such elections and broken its agreement. Later, the 1954 Geneva Accords, which separated North and South Vietnam, also provided for such an election. The United States had used its best efforts to make sure such an election did not take place. I simply did not know that.
I felt cheated. I had always believed the North Vietnamese had violated the 1954 Geneva Accords. Now, it turned out from this secret history, it was not true. Of all the volumes I read, this had the greatest impact on me. Strangely enough, Ellsberg had the same reaction when he read it…
Goodale met with the law firm, Lord, Day & Lord. The Times received advice to not publish the Pentagon Papers. Louis Loeb of the firm argued it would “not only be a crime to publish classified information, but it would be a crime even to look at the Pentagon Papers because they were classified,” and, “the Espionage Act covered the publication of classified information.” This was “flabbergasting” to Goodale, who found the First Amendment was absent from the lawyers’ analysis. Goodale supposed this “knee jerk reaction” that it would be illegal was a result of a lack of appreciation for the First Amendment.
The Times wound up publishing after all. Nixon immediately pursued an injunction. The presses were temporarily stopped, and days later the legal team was part of a trial where the legal team was arguing over whether the Espionage Act, First Amendment or Executive Order 10501 would permit an injunction.
The book thoroughly recounts each episode in the Pentagon Papers case, including the tactics of prosecutors who tried multiple times to introduce secret evidence of “harm” or “damage” done to the national defense improperly into court proceedings.
At last, on June 30, 1971, the historic victory comes down from the Supreme Court. It was a 6-3 decision. Justice Potter Stewart ended up adopting a test for whether the government could issue an injunction that was dependent upon whether it would cause “direct, immediate and irreparable damage to our nation and its people.” This was similar to the test the Times legal team had asked the court to adopt.
How significant is this case in US history? Goodale writes:
The Pentagon Papers case was the first of its kind in American history. The United States Government tried and failed to use the courts to censor the press through the issuance of a prior restraint order. It will be very difficult for the government ever to succeed. The test adopted by the Supreme Court, that the government must show that a publication will surely cause direct immediate and irreparable damage to its nation or its people, is almost impossible to meet. The Pentagon Papers will never be overruled. It is a case for the ages.
While the focus of the book may be the Pentagon Papers case, Goodale also highlights other political cases as well. In 1970, the Justice Department sued Times reporter Earl Caldwell, one of the few black reporters at the newspaper, “for his notes about his coverage of the Black Panthers.” The Times decided to fight Nixon, but the Justice Department had been issuing subpoenas to the press. “Certain members of the press” chose to “work out a compromise with the Justice Department over producing information the department had requested.” And, “It was reported that that the TV program 60 Minutes and its producer, CBS, had settled a subpoena for a program they had done on the Black Panthers.”
Goodale contends, in contrast, “Today, major members of the press would band together in unified resistance. But back then, before the Pentagon Papers case, there was no organized group of media lawyers, either in or out of media organizations, to do that.”
With the entire news business outraged at the Justice Department for seizing the AP’s records in a fishing expedition, that is a good point to end this introductory post and an appropriate comment to lead us all into what should be an enlightening and important discussion on press freedom in this country.
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