Earlier today, our thin-skinned president pitched a little hissy fit
at the media over its reporting about his administration's spying on bank transactions. This afternoon, right-wing talking heads piled on, suggesting that the New York Times
's Bill Keller is at the very least reckless and possibly a candidate for a treason trial for having decided to run the story.
We've been here before.
Thirty-five years ago, almost to the day, the Times ran excerpts from a 47-volume study entitled "United States-Vietnam Relations, 1945-1967," commonly known as the Pentagon Papers. The documents were leaked to the Times and the Washington Post by Daniel Ellsberg, a Defense Department employee.
The Pentagon Papers were considered as "top secret"--then, as now, the Executive Branch is prone to overclassify--and the Nixon administration hit the ceiling when the turned up in the press. The administration filed suit seeking an injunction that would stop the publication of more of the papers. It argued that President Nixon had the inherent power, as commander-in-chief of the military, to protect the national security by preventing their publication. Heard that one before?
The president's men also formed the White House Plumbers who, among other things, broke into Ellsberg's psychiatrist's office, but that's another story for another day.
The case--actually, there were separate actions against the Times and the Post--quickly went up to the Supreme Court which, on June 30, 1971, turned down the government's motion. The decision was New York Times Co. v. United States, 403 U.S. 713 (1971).
Six of the nine justices concluded that the government had not met the heavy burden of proof required for a prior restraint on speech. The strongest words in favor of the First Amendment were written by Justice Hugo Black, one of the Court's foremost champions of the Bill of Rights. Justice Black was of the view that the First Amendment forbade the government from ever enjoining the publication of "current news of vital importance." He argued:
Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.
In fact, Black believed that the Times and Post should have been commended for having done "precisely that which the Founders hoped and trusted they would do." He also rejected the argument that national security trumps freedom of the press:
The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged.
Justice Harry Blackmun was one of the three dissenters. Channeling Tony Snow, he warned the newspapers what might happen if they publish sensitive documents:
I hope that damage has not already been done. If, however, damage has been done, and if, with the Court's action today, these newspapers proceed to publish the critical documents and there results therefrom "the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate," to which list I might add the factors of prolongation of the war and of further delay in the freeing of United States prisoners, then the Nation's people will know where the responsibility for these sad consequences rests.
No such consequences followed. It is widely agreed that the release of the Pentagon Papers had little adverse effect on our national security. But that is irrelevant to this administration. It is determined to set the historical record straight. You see, Vietnam was winnable, if only those pot-smoking hippies had shut up and the press had shown more patriotism and not undermined the president.
There's one final quote from the Pentagon Papers I'd like to share. It's from Justice William O. Douglas's concurring opinion:
Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. On public questions there should be uninhibited, robust, and wide-open debate.
Amen to that.