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Wikileaks and the Pentagon Papers

Why the press should defend itself, then and now

By James C. Goodale

Angry conservatives are calling for the head, almost literally,

of Julian Assange, the public face of WikiLeaks. Senator Joe

Lieberman and others are arguing for the prosecution not

only of WikiLeaks but ofThe New York Times, whichpublished stories based on the classified documents that

WikiLeaks released, as did some European outlets. One

might think the U.S. press would vigorously defend the

fredom to publish such stories. Instead, as Newsweek

recently noted, the pushback has been piecemeal and

somewhat muted.

This should not be the case. Nearly forty years ago I was

lead counsel for The New York Times in the seminal

Pentagon Papers case. At the end of the day, I see no

fundamental distinction between the publication of the

Pentagon Papers and the publications by WikiLeaks. There

may be manydifferences between the two publishingevents, but each is protected by the First Amendment and

for this reason the publications by WikiLeaks should have the

support of the journalistic community. That community


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cannot stand by and watch the First Amendment being

weakened.

In the Pentagon Papers case, Daniel Ellsberg Xeroxed 7,000

pages of classified documents and made them available to

Neil Sheehan and The New York Times. The Times published

some of the Pentagon Papers, retaining others. The

WikiLeaks publication is the digital equivalent. In the

WikiLeaks matter, Private Bradley Manning allegedly

uploaded troves of classified and non-classified material tothe WikiLeaks websitedocuments about the Iraq and

Afghanistan wars and, subsequently, subsequent diplomatic

cables. WikiLeaks, in turn, sent the cables to newspapers.

Manning, as the leaker, plays the same role as Daniel

Ellsberg, who leaked the Pentagon Papers to the Times.

Assange and his WikiLeaks act as a publisher, as did The

New York Times in the Pentagon Papers case. President

Richard Nixon, when he first heard of the publication of the

Papers, wanted to prosecute the Times criminally. Soon after

the initial publication, Nixon remarked to H.R. Haldeman (as

recorded on the White House tapes) that the Justice

Department should subpoena all these bastards [the Times]

and bring the case. Instead, he sought to enjoin the Times

and later, The Washington Post, from publication. He

succeeded for seventeen days, until the Supreme Court


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ruled in the Timess favor. The court issued an historic First

Amendment opinion, which concluded the Times could

publish the Paperseven if such publication damaged

national security to some degree, which several of the

justices thought it did. There is no reason why the principles

in that case should not apply to Assange and WikiLeaks.

It is true that the Pentagon Papers case was a censorship

case while Assanges case involves potential criminal

prosecutionquite different, legally. But, generally speaking,the same First Amendment principles apply to both. [WE

NEED TO ARTICULATE WHY THIS IS SO. IS IT THAT

PROSECUTION UNDER THE ESPIONAGE ACT WOULD HAVE A

CHILLING EFFECT, AND THUS UNDERMINE FREE SPEECH, IN

THE SAME GENERAL WAY THAT PRIOR RESTRAINT WOULD?

NOT SURE, BUT THIS IS THE PIVOT POINT OF THE PIECE AND

WE NEED TO BE CLEAR ABOUT THE POINT.] The government

cannot censor the press unless the publication of information

will surely result in direct, immediate, and irreparable

damage to our Nation or its people. [AGAIN, WHERE IS THIS

LANGUAGE FROM? SUPREME COURT IN PAPERS CASE?]

The government has never prosecuted the press for

publishing secrets [RIGHT?], so a precise First Amendment

test for government criminal prosecution of the press has

never been articulated. But as University of Chicago Law

School Professor Geoffery Stone said at the December 16


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House Judiciary Committee hearing on the law that some

think the government should employ, the Espionage Act off

1917, unless the government shows such publication poses

a clear and present danger of grave harm to the nation

publication cannot be penalized. [WHY? IS THAT LANGUAGE

IN THE ESPIONAGE ACT? WHAT IS STONES REASONING,

BRIEFLY?] None of Assanges leaks have amounted to a clear

and present danger to national security.

Granted, there are many differences in the WikiLeaks matter

that make the application of the First Amendment principles

underlying the Pentagon Papers case seem counter-intuitive.

First there is the sheer size of the leak. Manning allegedly

leaked hundreds of thousands of diplomatic cables to

Assange. But it should be remembered the huge size of

Ellsbergs leak made it distinctive at the time and shocking

to many. [NOTE TRIM OF COPYING STUFF; IT SEEMEDOBVIOUS]

Another reason why it seems counter-intuitive to support

Assanges publications is that they are journalistically

dissimilar to the Pentagon Papers. The Papers consisted of a

brilliant historical study organized by Leslie Gelb, who later

became a Times columnist and President of the Council of

Foreign Relations. Chapters were written by such experts as

Richard Holbrooke and Daniel Ellsberg himself. The studys

persistent theme was that the government had lied to the


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public about the war: among other things, the government

never told the truth about the Geneva Accords, which set up

the division of North and South Vietnam. And President

Johnson lied about his plans toward Vietnam in the 1968

election and also lied about the events underlying the Tonkin

Gulf Resolution, which provided the Administrations

rationale for the war. The Times further edited and organized

the Pentagon Papers material in publishable form.

In contrast, though by agreement with WikiLeaks, the

modern documents were organized and edited by the Times

and its journalistic colleagues, including Der Spiegel, The

Guardian, and Le Monde, before those outlets published

them, but the WikiLeaks document releases themselves

have been called a data dumpseemingly without any

organizing principle, without rhyme or reason.

This being so, it is hard to develop much sympathy for

Assange. Ellsberg believed his disclosures would benefit the

U.S. He had a principled belief that disclosure of the

Pentagon Papers would change specific U.S. public policy.

Assange seems to aim to undo the structure of the U.S.

government and other governments too.

But even if one does not like what Assange has done, it does


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not mean his efforts do not deserve support under the First

Amendment. It may be one does not like that pseudo-Nazis

have a right to march in Skokie, but that does not mean that

one should not support that right.

William B. Macomber, a State Department official, testified at

the Pentagon Papers trial that the publication of the role

Poland played in a peace negotiation, called Marigold,

would be very offensive to the Polish government. He also

testified the publication would embarrass the Canadiangovernment. (The U.S. had used Chester Ronning, a

Canadian diplomat, to represent it at peace negotiations

with the North Vietnamese. The Canadian public, however

was told that Ronning only represented Canada.)

Further Dennis Doolin, Assistant Secretary of Defense,

testified that the disclosure of secret bases in Thailand would

embarrass the Thais. He said if governments couldnt keep

its secrets, foreign governments could not deal with the U.S.

in confidence.

The WikiLeaks cables contain similar allegations and many

embarrassing characterizations of leaders. French President

Nicolas Sarkozy is described as thin skinned and

authoritarian. Italian President Silvio Berlusconi is

feckless, vain, and ineffective. British Prime Minister David

Cameron is called a lightweight by President Obama.


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Russian President Dmitry Medvedev plays Robin to Putins

Batman.

The two trial courts that heard Macomber and Doolins

testimony ignored it. They found that the government could

not stop publication of information that was merely

embarrassing. Judge Gurfein, who presided over the

Pentagon Papers trial, presciently said, I wonder in the

times we live in whether you dont have to adjust... Every

day on television I can find out almost the entire order ofbattle of the United States Army and Marines... Gurfein did

not know, of course, a generation later we would be in the

digital age and would have to make adjustments to new

technology.

Whether we like it or not, in the digital age, privacy and

confidentiality have become an increasingly scarce

commodity. It is safe to say the State Department, like the

rest of us, will have to adjust to that fact.

The Obama Administration is threatening to prosecute

WikiLeaks for violating the Espionage Act. One of the many

problems the government will have with such a prosecution

is that if it prosecutes WikiLeaks it should also prosecute the

Times. This is because as publishers, theTimes and

WikiLeaks published the same material. Yet this is not a

problem for some. Senator Joe Lieberman, former Secretary


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of State Condoleezza Rice, and others have called for the

prosecution ofThe New York Times as well as WikiLeaks.

They claim that both have damaged national security, or as

Lieberman in fact said, Let there be no doubt. . . [they] are

going to have blood on their hands.

Obamas Justice Department has, been strangely enamored

of the Espionage Act for press-related prosecution. It has

brought more such prosecutions (four) than any other

administration. Only three had been brought previouslysince that Act was passed in 1917. But if Justice were to

prosecute WikiLeaks for receiving classified information or

conspiring to receive classified information, it will have

created an Official Secrets Act by fiat. Such an Act would

make the publication of any classified information criminal,

just as it is in the U.K. Such an Act has never been thought

constitutional here because the U.S. has a First Amendment.

For this reason, many rights organizationsuch as Human

Rights Watch and the Committee to Protect Journalistshave

urged the Obama Administration not to prosecute WikiLeaks.

The U.S. press should be leading that charge.

The Pentagon Papers set down the principle that classified

information can be published unless such publication surely

causes direct, immediate, and irreparable damage to the


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nation or its people. A similar principle should protect

WikiLeaks today, even though the information it publishes

may not be to ones liking.

James C. Goodale, counsel for The New York Times in the

Pentagon Papers case, is writing a book, Fighting for the

Press, Why the Pentagon Papers Case Still Matters and is co-

producer of the TV program Digital Age Channel 25, New

York C.ity.

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