Welcome James C. Goodale (Wiki) (JamesCGoodale.com) and Host Kevin Gosztola (FDL, The Dissenter) (Salon) (Twitter)

Fighting For The Press: The Inside Story of the Pentagon Papers and Other Battles

“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.

 

[As a courtesy to our guests, please keep comments to the book and be respectful of dissenting opinions.  Please take other conversations to a previous thread. - bev]

126 Responses to “FDL Book Salon Welcomes James C. Goodale, Fighting For The Press: The Inside Story of the Pentagon Papers and Other Battles”

BevW May 19th, 2013 at 1:50 pm

James, Welcome to the Lake.

Kevin, Thank you for Hosting today’s Book Salon.

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Kevin Gosztola May 19th, 2013 at 2:00 pm

Hello, James

First, let me thank you for the opportunity to host this chat with you.

And, Bev, thank you for scheduling this important Book Salon that in the past week became topical.

I hope we will have an engaging and enlightening discussion.

James C. Goodale May 19th, 2013 at 2:01 pm
In response to BevW @ 1

Hello book lovers.

dakine01 May 19th, 2013 at 2:01 pm

Good afternoon James and welcome to Firedoglake this afternoon. Hi Kevin!

James, I have not had an opportunity to read your book so forgive me if you address this in there but given today’s various laws, prosecution of whistleblowers, the AP subpoena, wikileaks, etc could the Pentagon Papers be published in today’s environment?

James C. Goodale May 19th, 2013 at 2:01 pm
In response to Kevin Gosztola @ 2

I hope so too.

James C. Goodale May 19th, 2013 at 2:03 pm
In response to dakine01 @ 4

Yes, they could be published and if the case went to today’s Supreme Court, the New York Times would win.

RevBev May 19th, 2013 at 2:05 pm

How does the Pentagon analysis in your book relate to the current AP revelations (if that works as a question)?

Kevin Gosztola May 19th, 2013 at 2:05 pm

To get us started (and after you get to dakine01′s question)—

What gave you the confidence to take on the Pentagon Papers case and be such a defender of the New York Times‘ right to publish? You write in your book about not being sure that other lawyers had an appreciation for the First Amendment.

How did you develop an appreciation for the First Amendment when other lawyers in your profession had not?

eCAHNomics May 19th, 2013 at 2:08 pm

What role did the Pentagon Papers play in the near impeachment and thus resignation of President Nixon?

Kissinger was a Wall Street asset, and suggested the Plumbers to stop the leak, which is what trapped Nixon. The Plumbers included FBI agent Gordon Liddy, and CIA agents Howard Hunt and James McCord, both in the orbit of the CIA Office of Security. We know the elementary mistake they made in order to get caught. The Watergate revelations came from top FBI official Mark Felt, “Deep Throat.” The main journalistic exposé was supervised by Bob Woodward, who had been a top naval intelligence officer. Seems like a cabal working against Nixon.

Did you question the backgrounds of those participants at the time?

James C. Goodale May 19th, 2013 at 2:08 pm
In response to RevBev @ 7

The lesson of the book is that one should not believe claims of national security made by the government. I don’t think Obama has learned this lesson or else he would not have let Holder send out such an outrageous subpoena.

James C. Goodale May 19th, 2013 at 2:10 pm
In response to Kevin Gosztola @ 8

I grew up in an academic community where freedom of thought was prized over making money. The average lawyer is concerned with protecting corporate interests and frequently has no sensitivity for the First Amendment or other human rights.

thatvisionthing May 19th, 2013 at 2:12 pm

How do you challenge that when the courts faint and crap out at the mention of the words “state secret”? There is no constitutional check and balance anymore.

eCAHNomics May 19th, 2013 at 2:14 pm

Did you check the content of Pentagon Papers with open sources to see whether the VN history in the PPs was standard fare?

bluewombat May 19th, 2013 at 2:18 pm

David Swanson has written sarcastically (and, in my opinion, justifiably) about the fact that the AP has its jaws in an uproar over the way its journalistic rights have been violated, but has expressed no concern over the astonishing infringements of press freedom by both Junior Bush and Obama over the last 12 years so long as only the alternative press was involved.

Do you feel the mainstream — or, as many of us in here would say, corporate — press has been asleep at the switch, thinking that their status as members of the Gentlemen’s Club would insulate them from these outrages?

James C. Goodale May 19th, 2013 at 2:18 pm
In response to eCAHNomics @ 9

The Pentagon Papers led directly to the impreachment of Nixon. Nixon was so angry at Ellsberg’s leak that he formed the Plumbers unit to trap Ellsberg. The Plumbers unit thereafter committed other criminal acts which when discovered caused Nixon’s impeachment. Without the Pentagon Papers, Nixon would not have been impeached. I did not question their credentials at the time.

Kevin Gosztola May 19th, 2013 at 2:19 pm

Now, I would think it’d be reasonable to argue that the popular consensus is news organizations should not publish classified information. They still do, but, back when the Times obtained the Pentagon Papers, it appears the press and the legal community did not know if it was legal or illegal.

Do you think news organizations are more or less willing to publish classified information if they determine the public has a right to know this information? The government seems to have been effective in conditioning citizens to believe they shouldn’t read classified information in the newspaper, even though this country has a vast over-classification problem.

James C. Goodale May 19th, 2013 at 2:21 pm

It is very difficult to challenge claims of national security. The government has the upper hand. In the Pentagon Papers case 1) we cross-examined government officials to make them look foolish, and 2) we had publications that showed government claims of “national secrets” had already been published and been made available to the public.

James C. Goodale May 19th, 2013 at 2:22 pm
In response to eCAHNomics @ 13

Yes. One of the main sources was the New York Times.

DaveMoore May 19th, 2013 at 2:22 pm

I just wanted to add my $.02 as a person “harmed” by the publication of the Pentagon Papers. I graduated from airborne during the DC May Day riots, May 1971, receiving orders for Vietnam. I was there while all this was going on. I can tell you as a teenager, an eighteen-year old soldier, it did not register. I was a volunteer, as all men before me in my family, and saw communism as a threat. My point is I doubt a guy in Kandahar really cares about what Manning exposed. Also, I saw you on Amy Goodman and look to reading your book. Thanks.

James C. Goodale May 19th, 2013 at 2:25 pm
In response to bluewombat @ 14

The mainstream press has been asleep as to Obama’s actions. I am not sure of the reason but it is clear it has given Obama a pass on these matters, at least up to the AP incident.

James C. Goodale May 19th, 2013 at 2:28 pm
In response to Kevin Gosztola @ 16

The press continuously publishes classified information today. In all probability it is probably the same amount that it published a generation ago. Obama, however, has suddenly decided to crack down on leaks. I do not think the quantity of leaks has increased, but Obama does.

bluewombat May 19th, 2013 at 2:28 pm

I think it’s because Obama is a Democrat, because he’s black/bi-racial, because he’s articulate, simulates empathy (much like Bill Clinton) and has an inspiring life story (also like Clinton). So he’s supposed to be one of The Good Guys(TM). People can’t see past partisan descriptions to underlying core principles. One reason I’m not a Dem. anymore.

James C. Goodale May 19th, 2013 at 2:29 pm
In response to DaveMoore @ 19

I couldn’t agree more.

bluewombat May 19th, 2013 at 2:30 pm

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!”

That is a fantastic quote. Kudos to you for having said it, Mr. Goodale.

James C. Goodale May 19th, 2013 at 2:31 pm
In response to bluewombat @ 22

You may be right.

Kevin Gosztola May 19th, 2013 at 2:32 pm

While many Americans know of the Pentagon Papers case, few are probably aware of the Caldwell case you highlight in your book. You write that it was a “dramatic stage-setter for the Pentagon Papers case.”

As soon as Nixon was inaugurated, his Justice Department started subpoeaning the press for its sources and other unpublished information. This was unprecedented. The reverberations from this fight can be felt to this very day.

Just how significant was it that Nixon was targeting one of the few black reporters at the Times, Earl Caldwell?

eCAHNomics May 19th, 2013 at 2:33 pm

No irony there…

PP plagiarizes (so to speak) NYT then instates legal cases against NYT for republishing its own work.

thatvisionthing May 19th, 2013 at 2:34 pm

It’s a failure of reason, which undermines the whole Constitution.

Do you have a comment on the recent FOIA decision on info related to targeted killings wherein Judge Colleen McMahon wrote that she couldn’t see how the government’s position could be constitutional…

I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.

… and yet denied the ACLU and NYT’s FOIA?

DaveMoore May 19th, 2013 at 2:35 pm
In response to bluewombat @ 22

I couldn’t agree more with you. It’s also why I voted for Jill Stein.

James C. Goodale May 19th, 2013 at 2:35 pm
In response to Kevin Gosztola @ 26

It was very significant. Caldwell was able to get information other members of the Times could not. Because he had a special role, Nixon’s actions made us at the Times even more angry at Nixon. We were thus well prepared for any subsequent step he might take.

bluewombat May 19th, 2013 at 2:35 pm

Do you feel Bradley Manning is an alleged criminal, whistleblower unjustly prosecuted by the government, or something in between?

James C. Goodale May 19th, 2013 at 2:37 pm

Getting classified information under FOIA even when the information sought shows illegal actions of government is very difficult. That is why it is necessary to leak and why we should show some tolerance for leaks.

Kevin Gosztola May 19th, 2013 at 2:39 pm

With regards to arguing the Times had the right to publish the Pentagon Papers in court and going all the way to the Supreme Court—

How new do you think the legal arguments were to judges who were hearing them? There wasn’t any precedent for this case, right?

James C. Goodale May 19th, 2013 at 2:39 pm
In response to bluewombat @ 31

Something in between. A sentence of 20 years is enough. There is no need to prosecute him further under the Aiding the Enemy Act.

James C. Goodale May 19th, 2013 at 2:41 pm
In response to Kevin Gosztola @ 33

There was no precedent. A majority of the judges were receptive to the arguments. The biggest disapointment was the Second Circuit in New York where the appellate judges were against us.

thatvisionthing May 19th, 2013 at 2:42 pm

As a citizen, the idea of secret law reeks of idiocy and fail. I keep waiting for a ref to blow the whistle, throw a flag and stop the game right there. But they don’t.

bmaz May 19th, 2013 at 2:43 pm

Mr. Goodale, welcome, and thank you not only for your time today, but also for all your efforts over the years in support of the First Amendment. I am of the understanding that you have opined, I believe perhaps on Democracy Now, that there exists a secret indictment of Julian Assange and/or WikiLeaks. Can you describe your basis for this statement and what evidence you have seen directs that conclusion?

Also, I am not all the way through it yet, but your book is fantastic, thank you for the tour of one of the most important times and cases in our legal history.

bluewombat May 19th, 2013 at 2:43 pm

A sentence of 20 years is enough.

I admire you and am in awe of your accomplishments, but respectfully disagree on this one. I think he’s a whistle-blower straight up and should be freed with time served.

James C. Goodale May 19th, 2013 at 2:43 pm

Agreed.

spocko May 19th, 2013 at 2:44 pm

Thanks for being here. I just read your bio. Wow. Since you hosted the show Digital Age I’d like to ask what are your thoughts on how regular citizens can becoming whistle blowers on important issues today. Since we now have access to “the press” we can “be the media” if we want.

We see is happening to Assange and Manning as well as other whistleblowers. How would you proceed today if you were a whistleblower? Would your actions be different if you were a whistleblower against a military contractor like Kellog Brown and Root vs. a private company?

thatvisionthing May 19th, 2013 at 2:44 pm

Has anyone ever used upholding their oath to the Constitution, when going up the chain of command has failed, as a legal defense? Has it ever been tested in court? I was sorry to see Manning plead guilty to anything. Look at his context.

Kevin Gosztola May 19th, 2013 at 2:45 pm

20 years is the maximum sentence Manning would face right now if the military (government) decided not to take his case trial because he confessed to committing some offenses.

I witnessed court proceedings where this exchange happened:

JUDGE: If we substituted New York Times for WikiLeaks, would you still charge Bradley Manning in the way that you have?

MILITARY PROSECUTOR: [without hesitation] Yes.

I am sure you must have heard or read about this in the news. What was your reaction?

BearCountry May 19th, 2013 at 2:45 pm

As an aside, Earl Caldwell is now on WBAI in NY.

James C. Goodale May 19th, 2013 at 2:48 pm
In response to bmaz @ 37

I may be way out on a limb on this conclusion. But I believe there is better than a 50% chance he has already been secretly indicted, principally because a government contractor has leaked that it has information there is a secret indictment of Assange. Secondly, Assange’s lawyers believe there is such an indictment. And lastly, the recent silence surrounding this grand jury is consistent with one which has handed down a secret indictment. This is because it may have finished its work and because its conclusion is secret, silence surrounds its activities.

BearCountry May 19th, 2013 at 2:49 pm

Thanks to James for writing the book and to Kevin for hosting. I now have the book on my list. If it is not in my library’s system, I’ll see that it is added. A book such as this needs to be available to the widest audience and in these hard economic times a library counts a great deal.

BearCountry May 19th, 2013 at 2:51 pm

It seems that Assange will never be able to leave the Ecuadorian embassy. Under no circumstances would he be safe outside and there could eventually be a mole slipped in there.

James C. Goodale May 19th, 2013 at 2:52 pm
In response to spocko @ 40

I think all whistleblowers are generically the same. While we all can be whistleblowers today, the greatest impact is still, I believe, with sharing information with the established press. Failing that, I would use the Net perhaps taking advantage of cryptographic technology which protects anonymity.

James C. Goodale May 19th, 2013 at 2:53 pm

I don’t know of anyone who has used that defense.

bmaz May 19th, 2013 at 2:55 pm

James, in criminal cases there is a process available known as CIPA, would you be in favor of Congress creating an analogous program for civil litigation and, if so, how would you suggest it be structured? If not, do you have other suggestions on how to better allow classified evidence to be dealt with in civil litigation?

James C. Goodale May 19th, 2013 at 2:55 pm
In response to Kevin Gosztola @ 42

I was shocked, but I have been warning the established press for several years of the risks of the Manning/Assange prosecution. Indeed, the last two penultimate chapters of my book deal with this question.

James C. Goodale May 19th, 2013 at 2:56 pm
In response to BearCountry @ 45

Thanks.

thatvisionthing May 19th, 2013 at 2:56 pm

Also, related question, I just listened to a podcast about the recent OREPA Y12 Resisters case, a Plowshares action to protest nuclear weapons in Oak Ridge. Former Attorney General Ramsey Clark wanted to testify about the Nuremberg Code and the Nonproliferation Treaty and “an individual’s responsibility to the law even if the government tells you otherwise.” I’ll include the part I’m referring to here for reference, but point here is, the judge wouldn’t let the jury hear him. It’s an amazing scenario. I’m not a lawyer, but I could be a juror, and I’m appalled at what juries can’t hear and how dumbed down that makes court. Both here, and in the Tim De Christopher case, and I expect all over the place. By the way, I also want to hat tip all of you that were fighting this fight back in the 1960s and 70s that I still see standing up — you, Ramsey Clark, Daniel Ellsberg. Anyway, comment on Nuremberg defense?

Ralph Hutchison, OREPA: A week before we had the trial here last week, we had a hearing to determine whether or not former Attorney General Ramsey Clark could testify at the trial, and the judge listened to him and eventually said, “I’m not going to allow the jury to hear that kind of testimony.” So Ramsey Clark said that the work that’s done at Y12 violates U.S. agreements under the Nonproliferation Treaty and he called it unlawful, and then the prosecutor said, “Are you saying the people who build these bombs are war criminals?” And Ramsey Clark said, “I’ll say they’re engaged in a criminal activity.” And, I mean, that’s sort of the reality of it. And then Ramsey Clark said, “Everybody who has a part in this is responsible.” There was a discussion about whether to allow the defendants to argue the Nuremberg Code which says, after World War II, after the Germans were obliterated in the Nazi concentration camps, the Nuremberg trials established that every citizen has a responsibility to the law even if the government tells you otherwise. And so these people said, “Well, we went in under our Nuremberg obligation. We see our government is preparing to destroy the planet and innocent civilians would be killed if a nuclear weapon is used, and that violates the laws of war, so it’s a war crime and we want to stop the preparation for a war crime.” But the judge would not allow that testimony to happen, and eventually he said, our prosecutor said everybody has the responsibility, and the judge said, “Well, except the judge doesn’t have responsibility, even though the prosecution can decide whether or not to bring charges, but once they do, I just have to apply the law.” And he tried to duck his responsibility. And of course the lawyer for the defendants asked Ramsey Clark, who had been at the Nuremberg trials, “Were any judges, any German judges put on trial at Nuremberg?” And Ramsey Clark said, “Yes, they were.” And were any prosecutors put on trial? “Yes, they were.” So it was clear in the courtroom, there isn’t any place to hide from our responsibility.

BearCountry May 19th, 2013 at 2:57 pm

I guess that I am just dense, but I really don’t see this as being greatly different than the PP. Maintaining the secrecy of these items, especially the helicopter attack, is keeping a war crime from being exposed. That should not be protected by secrecy.

It seems to me that with Obama, it is simply a question of leaks that help him are not prosecuted, those that expose crimes or actions that shouldn’t be done are to be prosecuted. Sort of like the Plame case.

PeasantParty May 19th, 2013 at 2:57 pm

Mr. Goodale,

Do you still see Kissinger’s hands in our foreign affairs? I think the old guard is still running the show and they have little to no accountability for their actions.

James C. Goodale May 19th, 2013 at 2:58 pm
In response to bmaz @ 49

I would use the CIPA model in civil litigation. There was no CIPA at the time of the Pentagon Papers litigation and it might have helped had there been one.

Kevin Gosztola May 19th, 2013 at 2:58 pm

I appreciated how you highlighted the “mosaic theory” in your book—the prevalent idea in government that “each bit of intelligence, although insignificant by itself, becomes significant when the whole mosaic is put together.”

For those who have not been able to read a copy of your book yet (and I encourage all to read a copy after this chat), you write, based off your experience as a member of elite intelligence unit in the Army Reserve, “I didn’t think giving the name “mosaic” to this theory made it any more convincing. My bottom line was those who controlled intelligence were hopelessly paranoid.”

What do you think about intelligence or national security agencies today? Still as paranoid as they were back then or worse?

James C. Goodale May 19th, 2013 at 3:02 pm

I think it’s a mistake to exclude defenses of that sort. In a sense it basically takes cases away from jurors and I think we all benefit from the wisdom of jurors who sometimes have more on the ball than judges.

James C. Goodale May 19th, 2013 at 3:05 pm
In response to BearCountry @ 53

I agree. In my book I point out that in Woodward’s book “Obama’s Wars” 75 to 85% of the book is based on classified information which was leaked to h im by the Obama Administration. Why? Because it makes the Obama Administration look good.

bmaz May 19th, 2013 at 3:06 pm

Clark’s “evidence” was probably properly excluded under the Federal Rules of Evidence actually if it was offered as opinion; do you have a link to the decision?

thatvisionthing May 19th, 2013 at 3:07 pm

Also, I’ve commented on Kevin’s page about this, Alexa O’Brien was interviewed recently by Harry Shearer and said Manning’s prosecutors have come up with new crime out of thin air, “wantonly publishing,” that they say is “far, far worse than espionage.” Do you have a comment?

ALEXA O’BRIEN: [Bradley Manning] pled not guilty to one of the more provocative and disturbing charges against him. It’s never been used before. In fact it’s not tied to any existing federal criminal violation or punitive article under the Uniform Code of Military Justice. It’s what’s called “wantonly publishing.”

HARRY SHEARER: (laughs)

ALEXA O’BRIEN: (laughs)

HARRY SHEARER: I think we both of us do that every day.

ALEXA O’BRIEN: Yeah. That’s why it’s so terrifying.

HARRY SHEARER: Mmhmm.

ALEXA O’BRIEN: But the crazy thing about this charge is that the knowledge element parallels the knowledge element in the aiding the enemy charge, so it essentially dovetails into aiding the enemy.

HARRY SHEARER: Now, “wantonly publishing” is actually legislative language in some law?

ALEXA O’BRIEN: Well, in oral arguments early on in the pretrial, the government argued that it was, you know, in terms of punishment that it was analogous to espionage but that it was far, far worse than espionage. And the defense came back and said, “This is a made-up offense. This shouldn’t be allowed.”

James C. Goodale May 19th, 2013 at 3:08 pm
In response to PeasantParty @ 54

I think the new guard is represented by John Kerry and was represented by Hillary Clinton. I think they may listen to the old guard (Kissinger et al.) but I think they act on their own.

thatvisionthing May 19th, 2013 at 3:09 pm
In response to bmaz @ 59

Secret law, made-up law, and law that is excluded from courts and juries?

spocko May 19th, 2013 at 3:09 pm

Thank you for your response. One of the things that can happen with legit whistleblowers is that their lives are destroyed by bringing the truth to the public. By going through the established press it might give you extra credibility, but if your information is damning enough they will cover you anyway. What I have observed is that today’s press do not really want to be in the position of ‘afflicting the comfortable” If you bring the information to them they will not want to be perceived as being on anyone’s “side” so much so that when something is clearly a case of corporate malfeasance or right wing lies, they will not actively help the investigation but bend over backwards to provide balance even if it means creating fake balance.

Kevin Gosztola May 19th, 2013 at 3:10 pm

Important to add in the case of the video of the Apache helicopter attack video that Reuters tried to get this through a FOIA request that CENTCOM did not think they had to fulfill. The video – now known as “Collateral Murder” – showed their own employees being wounded and killed. How could the government not have an obligation to turn this video over to Reuters?

James C. Goodale May 19th, 2013 at 3:11 pm
In response to Kevin Gosztola @ 56

I think they may be worse. Look at, for example, the National Intelligence Estimate that was the basis for the Iraq War. It was disgraceful and consisted almost entirely of unsubstantiated hearsay which, as we all know, turned out to be totally false.

UCT1 May 19th, 2013 at 3:11 pm

That’s what lawyering is all about.

James C. Goodale May 19th, 2013 at 3:12 pm
In response to bmaz @ 59

I am sorry, I do not have a link to the decision.

RevBev May 19th, 2013 at 3:14 pm

It has been a long time since the PP….Your book is a thrill to read.
Was there something that caused you to write it at this time?

James C. Goodale May 19th, 2013 at 3:15 pm

I don’t see how one can wantonly publish. What concerns me about Obama’s approach to leaking and the risks inherent in the Manning trial, is that the distinction between publishing and espionage has been lost.

James C. Goodale May 19th, 2013 at 3:17 pm
In response to spocko @ 63

Well that may be a fair comment on today’s established press. I think some of the reluctance to take on risk may be attributed to the diminishing resources available to the mainstream press.

James C. Goodale May 19th, 2013 at 3:20 pm
In response to Kevin Gosztola @ 64

It’s hard to justify. The weakness may be in FOIA itself. I have always favored leaking and entrepreneurial reportorial effort myself. Obviously, the Reuter’s “incident” to me was highly protectable whistleblowing.

spocko May 19th, 2013 at 3:21 pm

I’m concerned that the press has failed in its role of watchdog. There are a number of cases of military contractors ripping off We the People (our government) and I don’t see the establishment press doing this kind of investigative journalism. Therefor I’ve been suggesting that whistleblowers look into Qui tam laws (which allow a private individual, or “whistleblower,” with knowledge of past or present fraud committed against the federal government to bring suit on its behalf. The private individual who assists a prosecution can receive all or part of any penalty imposed.)

What are your thoughts of whistleblowers using these laws as a way to affect change?

skepticdog May 19th, 2013 at 3:22 pm

I’m not surprised the Republicans want to impeach Obama, I am surprised that we’re defending him.

PeasantParty May 19th, 2013 at 3:22 pm

Distinction between publishing and espionage has been lost.

That really is the problem isn’t it? We have national security people at the highest levels that have moved the bar so far, there is no information possible. Hence, the secret government and secret laws.

DWBartoo May 19th, 2013 at 3:23 pm

Ah, then James, whose “interest”, or “interests”, does this new guard “act” to further?

Also, you appear far more sanguine in your conviction that the “established press” would respond appropriately to “news” that the public, in even a putative democracy is entitled to know … than, at sixty-six turns around ole Sol, am I … and I offer the “Downing Street Memo” and “sexed-up” as “evidence” that little effort was made to tie this “revelation” to the lies ( happily pimped by the media) that led this nation into “endless” (or the “Long”, as they now term it) war …

Where once the fourth estate might have stood up to power, like both Congress and the Court, the media now are compliant, complicit, and fully on board.

I raise these issues not as criticism, but only for perspective, as I thoroughly have enjoyed and been educated by your thoughtful and cogent replies to the serious and informed questions placed before you this evening.

My sincere thanks and appreciation, James, to you and to Kevin, as well.

A most superb Book Salon.

DW

James C. Goodale May 19th, 2013 at 3:24 pm
In response to RevBev @ 68

I was impelled to write it because of WikiLeaks and Obama. I wanted to send a clarion message to the press to wake up and tell Obama that he had not learned the lessons of the PP. If he had, he would not still be pursuing Julian Assange for conspiring with Manning.

skepticdog May 19th, 2013 at 3:24 pm

The “lesser of two evils” bites us in the ass again.

Kevin Gosztola May 19th, 2013 at 3:24 pm

The Freedom of Information Act (FOIA) passed in 1966. Did you ever have to argue any cases to pry information out of the hands of the government when you were counsel for the Times?

Any further thoughts on it today? Though media organizations may not have the resources, is it good to take on the government in court to fight for information the public has a right to know? Should media organizations use what power they have and do this?

James C. Goodale May 19th, 2013 at 3:25 pm
In response to spocko @ 72

I’m sorry, I am not familiar with these laws. But your theory certainly sounds good to me.

RevBev May 19th, 2013 at 3:26 pm

Thank you….I hope he’s read it.

spocko May 19th, 2013 at 3:28 pm

Glenn Greenwald has pointed out time and time again in his Salon columns that the establishment press have misrepresented Assange. He has his theory’s about why they did. What are yours?

James C. Goodale May 19th, 2013 at 3:28 pm
In response to PeasantParty @ 74

It is a major problem and be prepared for testimony in the Manning trial that his leaks ended up on bin Laden’s computer. But also be prepared to hear nothing of the information from the New York Times that ended up there too. Please read my chapter on Obama who says anyone who leaks commits espionage.

PeasantParty May 19th, 2013 at 3:29 pm
In response to DWBartoo @ 75

Big smiles Thank you, DW. You got to the quick! Fair Brother, that you are.

thatvisionthing May 19th, 2013 at 3:29 pm

A related… knot, don’t know best word, is that even though Collateral Murder was unclassified, Kevin says charges are being pursued again Manning for leaking Collateral Murder because Manning thought it was classified. So a thought crime.

Meanwhile, prior to WikiLeaks’ receiving the video, the same Collateral Murder video was apparently leaked or made available, I guess that depends on whether or not you knew it was unclassified, to David Finkel, who wrote about it in his 2009 book The Good Soldiers, which was Army-friendly and Finkel has gone on to win much praise and journalism and monetary awards. It’s just stark the difference between Finkel’s experience and Manning’s, yet it’s the same information that they both received and passed on.

PeasantParty May 19th, 2013 at 3:31 pm

Thank you, James.

I am prepared. I try to work hand in hand with Kevin on the blog. Of course, he is the star; I just help out his loyal readers. I’ve already decided the Govt., and DOD will use any evil possible to make that stick.

James C. Goodale May 19th, 2013 at 3:33 pm
In response to Kevin Gosztola @ 78

As you may have gathered, I am not a fan necessarily for the use by the daily press of FOIA largely because the response time is too slow to meet the needs of the 24 hour news cycle. I do find it very useful in other areas. I used it in part for my book where I was denied access in fact but I decided not to appeal the denial. It has been used quite successfully by others to pry out some of the secret testimony in the PP case.

Kevin Gosztola May 19th, 2013 at 3:35 pm

You submitted a FOIA request for information for your book and were denied?

James C. Goodale May 19th, 2013 at 3:36 pm
In response to spocko @ 81

1) They don’t like him personally; 2) they don’t think he used any intellectual effort; 3) they don’t think he’s a journalist; 4) they think he has leaked more damaging material than they would publish. I can’t remember Greenwald’s theory but this is mine.

bmaz May 19th, 2013 at 3:36 pm

James, as you are aware, Pvt. Manning pled guilty to a number of counts and accepted responsibility; what do you make of that move? I was a little stunned that he and his attorney affirmatively did that with no agreement with the government in return. It struck me, and still does, that it was ill advised as his allocution process handed much of the foundation to the government on the top counts they are still prosecuting on = like espionage – on a silver platter. What do you make of that tactic?

spocko May 19th, 2013 at 3:36 pm

A friend of my introduced the qui tam laws in California. They were used to expose some of the ridiculous waste in Reagan’s “Star Wars” programs. Of course they had classified all the information as “national secrets” so they believed they could classify all the excessive made up charges. To this day what we know about some of this fraud we only know because of the qui tam cases brought up in this area.

The other benefit for this kind of work is that the whistle can be a patriot and not lose his livelyhood. Because if you expose the gravy train the old, “You’ll never work in this industry again!” is very real.

I also want people to use this money to fund journalism and activism that the media used to do before they had their cash cow classified revenue cut out from under them.

thatvisionthing May 19th, 2013 at 3:37 pm

Both Yochai Benkler (The Dangerous Logic of the Bradley Manning Case)

Big font inset graphic: The charge of “aiding the enemy” is vague. But it carries the death penalty—and could apply to civilians as well as soldiers.

and Daniel Ellsberg have both noted that the military law Manning is being prosecuted under applies to civilians as well, which makes all of us eligible for the death penalty if the administration so chooses.

Daniel Ellsberg: …by the way, the military clauses surprised me when I really saw an analysis of it. It says “any person.” It doesn’t have to be military. I didn’t know there were military regulations that could be applied to a civilian. I thought I was free of that charge now, being a civilian. No. You don’t even have to be a veteran like me. Any person, anybody else, who writes a letter to the editor that would lead some enemy like Osama to say, “Hey! Right on! I like that!” (laughs) “Post that one on the wall, that’s good,” is subject to the death penalty.

Just wondering if you’d like to comment on that too, thanks.

Kevin Gosztola May 19th, 2013 at 3:40 pm

I happen to be one of the plaintiffs in a legal effort to get contemporaneous access to military court martial records in Manning’s case. We—the press—do not get copies of judge’s rulings or court orders on the day they are issued in court. We do not get to read government motions and, now, we aren’t seeing defense motions. They’re no longer going up on the defense’s website.

What do you think about this? We lost in a military appeals court. So, all press are expected to go through FOIA to get these documents. And they won’t give it to you if you submit a FOIA request.

bigbrother May 19th, 2013 at 3:40 pm

Thank you for bringing the muzzling of the free press without it democracy is not possible. We are in a surveilance state now. Hoover would love it. Most of the press is right wing owned so many news worthy items are surpressed as a matter of ownership policy. Any thoughts?

James C. Goodale May 19th, 2013 at 3:41 pm
In response to Kevin Gosztola @ 87

Yes, It’s a pretty good story but too long to tell tonight. Suffice it to say the denial was of a classified legal document. The denial came the day after the 40th anniversary of the Pentagon Papers which the government celebrated by declassifying formally all of the Pentagon Papers.

CTuttle May 19th, 2013 at 3:41 pm

Aloha, James and Kevin…! As you note ‘I think they may be more paranoid(the IC).’

In the run up to Iraq, many State and/or CIA careerists were either shoved out the door, or resigned in disgust…! How much of an effect do you think the outsourcing to Corps like Boeing, Dynstar, etc, and the massive expansion of the IC outside of Langley/ NSA/Pentagon has had on the IC…?

bigbrother May 19th, 2013 at 3:42 pm
In response to bigbrother @ 93

And you were excellent on Moyers.

thatvisionthing May 19th, 2013 at 3:42 pm

The interview says to go to orepa.org’s website – just cursory clicking there brings me to this about Ramsey Clark’s testimony:

http://orepa.org/ramsey-clark-y12-activities-are-unlawful/

James C. Goodale May 19th, 2013 at 3:43 pm
In response to bmaz @ 89

I agree the strategy seems a little strange. One would have thought Manning would have gotten something in return. Perhaps, the lawyers are hoping the judge will perceive their efforts as being made in good faith so as to prevent further sentencing. But after reading what I have just written, that doesn’t seem very convincing.

bmaz May 19th, 2013 at 3:46 pm

No. Pretty gutsy, but I couldn’t have ever signed off on that.

PeasantParty May 19th, 2013 at 3:46 pm

I think the things he plead to were items that were not classified, wrongly classified, or classified after the release. It has been known that at least 15 other agencies had the same information and not all of them under the NSA. He should not be charged with espionage for that part.

Alan Kurtz May 19th, 2013 at 3:47 pm

Pleading guilty with no quid pro quo preserves the moral purity of Manning’s stance. He admits what he did with no expectation of lighter sentencing or reduced charges. He acted solely as a patriot and expects nothing in return.

James C. Goodale May 19th, 2013 at 3:47 pm

I have talked briefly with Benkler about his theory. It is based on the ambiguity of language that makes civilians possibly liable to the Aiding the Enemy Act. His point is because there is such ambiguity, that no one would ever advise a civilian, appropriately positioned, to leak. I take his point seriously but I don’t think the Aiding the Enemy Act was intended to reach that far.

bmaz May 19th, 2013 at 3:48 pm

This is probably a stupid question, but did you like the James Spader movie on the Pentagon Papers, and how faithful did you find it to the actual story?

Kevin Gosztola May 19th, 2013 at 3:50 pm

The final chapters highlight the assault on reporter’s privilege. How alarming is it that the Obama Justice Department appealed the decision and continued the effort to go after NYT reporter James Risen’s sources?

Is this a clear signal to you that we should be skeptical of any overtures the administration makes with regards to the media shield law – which in its currently introduced form has a broad national security exception?

James C. Goodale May 19th, 2013 at 3:51 pm
In response to bigbrother @ 93

I would prefer to say we are in a digital state rather than a survelliance state, although, there may not in the end be any difference. We leave a digital trail for everyone to follow, including the government. I do not think I agree that the right wing suppresses news. I have confidence in the autonomy of reporters whether they work for left or right wing entities to get their stories out – unsuppressed.

BearCountry May 19th, 2013 at 3:52 pm

Thanks to BevW for organizing this salon, to James Goodale for coming to discuss, and to Kevin for all the good reporting here, esp. on Manning.

BevW May 19th, 2013 at 3:52 pm

As we come to the last few minutes of this great Book Salon discussion,

James, Thank you for stopping by the Lake and spending the afternoon with us discussing your new book and the First Amendment fight we have now.

Kevin, Thank you very much for Hosting this great Book Salon.

Everyone, if you would like more information:

James’s website and book

Kevin’s website and Twitter

Thanks all, Have a great week. If you would like to contact the FDL Book Salon: FiredoglakeBookSalon@gmail.com

James C. Goodale May 19th, 2013 at 3:52 pm
In response to CTuttle @ 95

I have to really say I do not know the answer to this question.

RevBev May 19th, 2013 at 3:53 pm

Read the book if you haven’t….a great read and true education
full of history about important years and events.

James C. Goodale May 19th, 2013 at 3:54 pm
In response to bmaz @ 103

I did not see the Spader movie but I do recommend “The Most Dangerous Man in America.”

eCAHNomics May 19th, 2013 at 3:55 pm

I asked Woodward how did he have access to so much classified information. He didn’t answer.

bmaz May 19th, 2013 at 3:56 pm

Thanks, and thanks for the discussion today. For anybody that does not yet have a copy of James’ book, Fighting For The Press, I highly recommend you get one, it is superb.

Elliott May 19th, 2013 at 3:56 pm

Thank you for coming! Great discussion – best of luck with sales

spocko May 19th, 2013 at 3:56 pm

One of the things that I’ve watched the right wing owned media do is use their status as “the press” as a shield to hide actions that are illegal. I’m not talking about getting leaks. I’m specifically talking about News Corp actions in the UK and the News of the World. They used massive privacy violations, phone and computer hacking, pay offs of public officials, thief and fraud to obtain information on celebrities, politicians and ordinary citizens.

There is some evidence that employees of News Corp have hacked into the phones of US private citizens (9/11 victims) yet this has not been exposed in the establishment press here. I know you can’t speak for the journalists at a paper or the management, but why wouldn’t someone like the New York Times pursue this story? Afraid to get into a pissing match with Fox?

I think we know why the government wouldn’t follow up, even if legit, Fox would use this as a rallying cry of victimization (and sadly I think that other media would join it, rather than saying, This is a legit inquiry)

thatvisionthing May 19th, 2013 at 3:57 pm

You said on Democracy Now that the Pentagon Papers contained no secrets:

When I—I’ve got one message, basic message, in the Pentagon Papers part of the book, which is: When you look back at the so-called secrets, which the audience heard about in the clips, it’s all a bunch of malarkey. There are no secrets. The case with the Pentagon Papers was a bunch of—bunch of hot air. So, therefore, when we hear today the attorney general saying, “This is the worst secret I have ever seen disclosed,” you know, beware, because, invariably, these secrets turn out to be non-secrets. They are the ability of the government to protect themselves and their own information and their own political power.

It seems to be more about protecting Wizard of Oz pay no attention to that man behind the curtain?

Also, I don’t know if you’ve read Matt Taibbi’s article from March, Wikileaks Was Just a Preview: We’re Headed for An Even Bigger Showdown Over Secrets. I think it’s good; he mentions the Pentagon Papers.

The secrets are out there and everyone from hackers to journalists to U.S. senators are digging in search of them. Sooner or later, there’s going to be a pitched battle, one where the state won’t be able to peel off one lone Julian Assange or Bradley Manning and batter him into nothingness. Next time around, it’ll be a Pentagon Papers-style constitutional crisis, where the public’s legitimate right to know will be pitted head-to-head with presidents, generals and CEOs.

My suspicion is that this story will turn out to be less of a simplistic narrative about Orwellian repression than a mortifying journey of self-discovery. There are all sorts of things we both know and don’t know about the processes that keep our society running.

BearCountry May 19th, 2013 at 3:57 pm

I have to refer back to Stephen Colbert’s emcee turn at the WH Correspondent’s Dinner to think about reporters and unsuppressed stories. I think he did a good job.

Kevin Gosztola May 19th, 2013 at 3:57 pm

As we wrap up, I want to thank you for being here this evening to chat with everyone. You did a public service when you and others in the NYT legal team defended the right the newspaper had to publish the Pentagon Papers. Indeed, it is a “case for the ages,” as you write in the book.

I have one final question – if you happen to have the time to answer.

What are your thoughts about how the government is trying to cast WikiLeaks? Any final words on what it would mean if the government is able to get the judge to make some finding in Manning’s case that it does exist to try and steal government documents? In other words, to conspire to commit espionage and not merely operate as a media organization or publisher?

James C. Goodale May 19th, 2013 at 3:58 pm

I can’t think of a clearer signal. Obama wants to reintroduce a shield law with a huge national security exception to quiet the AP uproar. I think if that shield law were passed it would reverse the victory James Risen won which permitted him not to disclose national security information leaked to him by Jeffrey Sterling. Without taking up more time than I have, the bottom line on Obama’s suggestion to reintroduce the shield law is that it is a snare and delusion.

thatvisionthing May 19th, 2013 at 3:59 pm

I don’t think the Espionage Act was intended to go this far, but here it’s going into made-up law “wantonly publishing” and thought crimes. Also, from point above, if Collateral Murder was unclassified, why couldn’t Reuters get it on a FOIA?

BevW May 19th, 2013 at 4:01 pm

Thanks to James and Kevin again, for a great discussion.

Kevin Gosztola May 19th, 2013 at 4:05 pm
In response to BevW @ 120

Thanks, Bev.

And thank you to everyone who participated and asked good questions.

CTuttle May 19th, 2013 at 4:05 pm
In response to BevW @ 120

Mahalo Nui Loa, Bev, James and Kevin for this excellent Book Salon…!

thatvisionthing May 19th, 2013 at 4:32 pm

Catching up on earlier replies, re the Reuters FOIA I see James Goodale wrote @71:

It’s hard to justify. The weakness may be in FOIA itself. I have always favored leaking and entrepreneurial reportorial effort myself. Obviously, the Reuter’s “incident” to me was highly protectable whistleblowing.

What does last sentence mean? Govt had legal obligation to release CM video to Reuters, or govt had good legal excuse to protect its own butt, or is that a sidestep to WikiLeaks right to publish or Manning’s right to leak, or – ? I dunno, help appreciated. Finkel got to see the video for his 2009 book, apparently obviously though I don’t think he has said, but not Reuters? How unusual is it for that video not to be classified? Stuff I wonder about.

Thanks to James and Kevin and Bev. Great Book Salon!

nixonclinbushbama May 19th, 2013 at 4:51 pm

I am so sorry that I was missed this important book salon, which I will now read, albeit belated. Thank you to all involved.

thatvisionthing May 19th, 2013 at 4:59 pm

re info on bin Laden’s computer, I thought this was a good exchange in the Harry Shearer-Alexa O’Brien interview:

HARRY SHEARER: …Do we know at this point whether what was found on Osama bin Laden’s computer were the documents themselves or reports of them as published by the New York Times or The Guardian?

ALEXA O’BRIEN: We don’t know. All we know is basically one reference made that was a descriptor by the government when it was talking to the judge in a colloquy about even admitting this evidence; they wanted to have a classified review in camera, which is in chambers with the judge to sort of talk about this evidence. And we know that it consisted of the Afghan war logs and State Department information.

HARRY SHEARER: So theoretically – I’m speculating here – the evidence could constitute the presence on Osama bin Laden’s computer of stories from the New York Times and The Guardian which included reports on some of this information.

ALEXA O’BRIEN: Absolutely. You know, it’s interesting because I think Glenn Greenwald, a highly respected former Constitutional lawyer and journalist, has said that, you know, Bob Woodward writes books that have Top Secret classified information in it, and Osama bin Laden has produced videos recommending to everybody to read Obama’s War by Bob Woodward – what’s the difference here?

(That last I know relates to @58.)

thatvisionthing May 19th, 2013 at 5:20 pm

Re why he pled guilty, there’s this from the same interview:

ALEXA O’BRIEN: Well, Bradley Manning is really young, first of all. When he leaked these, he was in his, you know, early 20s. He’s currently 25 years old. He’s also very, very bright and precocious, and he’s very methodical and very logical, and he’s incredibly earnest. He’s earnest in the way that really bright, passionate people can be, and so they can oftentimes be also a bit intense. [...] But you know fundamentally Bradley Manning is actually a very obedient and earnest young man, and if you see him in court he has the kind of personality that would even disarm and has disarmed this very aggressive and boisterous military prosecutor. During the Article 13 when Manning was on the stand for nine hours, by the end of his cross examination with the government, the government prosecutor was smiling at him. There isn’t much mendacity to Bradley Manning, and in many ways he answers questions in the way that you or I would answer questions if we were on the stand for these serious charges. I think he really, really, truly believes that he was doing the right thing and that he couldn’t handle – in a statement he talked about the fact that he didn’t want to work for the Iraqi security police because he knew that these people would be disappeared or would be tortured and he just couldn’t live with that.

HARRY SHEARER: I guess the question about him that lingers with me is, after following the story of his treatment, his pretrial confinement, especially the treatment at Quantico, the person you describe, I mean certainly within the broad parameters of what we consider normal, sounds utterly normal. He doesn’t sound like somebody who’s been tortured for nine months. It doesn’t sound like he behaves like somebody who’s been tortured for nine months.

ALEXA O’BRIEN: You know, Bradley Manning isn’t a maniac. He’s a very reasoned person. And even if you see how he’s instructed his lawyer to handle himself with the press, he said to his lawyer that he only wanted text-based documents published, that he didn’t want to do any kind of exposés. This is a person who’s very scientific in his thinking. I think the fact that he leaked source documents is a thread throughout that, that he wanted the public to really be informed, that he believed in the idea of self-governance and the requirement of public information and knowledge as a requirement for that. This is not somebody who is a showboat, a gloryboat, a media whore, so to speak, so I think he can – even in his plea, he said, “I admit guilt, that these actions are service discrediting and prejudicial to the good order and discipline of the U.S. armed services, and I can see how these leaks harmed U.S. reputation as to how it could handle information, and for that I, you know, I take full responsibility.”

Again, I’m sorry he pled guilty because I think in a fair trial in a not-dumbed-down court (@57) he could be found innocent, and it’s a defense the Constitution deserves and a vindication it sorely needs.

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