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Sunday, Nov 8, 2009
The Supreme Court's Pentagon Papers decision barred an imperious president from blocking publication of explosive government documents about an ill-conceived war. Today, journalists may not be so brave -- or judges so vigilant.
Jul 1, 2003 | America is in the midst of a controversial, undeclared war in a distant land against a cunning and resourceful enemy. The nation is bitterly divided. Opponents of the war say that our leaders manufactured a bogus threat to justify an unnecessary and unwinnable war that is inflaming the world against us. Supporters say that a strong American stand is necessary to stop an insidious, totalitarian ideology from spreading across a strategically vital region and proclaim that the encounter is nothing less than a clash of civilizations. Despite overwhelming American military superiority, the war drags on and on. Flag-waving supporters of the administration clash with dissenters, calling them traitors. High-ranking government officials say that those who criticize the war are giving aid and comfort to the enemy. Obsessed with secrecy and convinced of the rightness of his cause, the tough-talking Republican president vows to stay the course.
2003, George W. Bush, and the war on Iraq? No: 1971, Richard M. Nixon, and the war in Vietnam. But if the similarities between the two periods are striking, what happened next has no parallel today. At least not yet.
An explosive document is leaked to the press. The papers, drawn from top-secret government files, reveal embarrassing things about the administration's conduct of the war, including the fact that U.S. officials knew that many of the official reasons given to support the war were false. The government sues to stop the press from publishing the document, saying that publication threatens national security. The case goes to the Supreme Court, which hears the case with extraordinary speed. In a passionate and contentious ruling -- one in which, extraordinarily, all nine justices feel compelled to write opinions -- the court rules, 6-3, that the government has no right to prevent the press from publishing the papers.
The Pentagon Papers case was a landmark ruling for press freedom and a historic rebuke of government's attempt to suppress it. But it is a fragile ruling. Americans like to think that the freedom of speech guaranteed them by the Bill of Rights, and the Supreme Court rulings upholding that freedom, are written in stone. Nothing could be further from the truth. As Justice Brennan wrote in an earlier free speech case, "It is characteristic of the freedoms of expression in general that they are vulnerable to gravely damaging yet barely visible encroachments." Those encroachments threaten free speech at all times -- and during war they become extreme. Civil liberty, in particular the right to free speech, is often curtailed during wartime, when fear, patriotism and the siren song of "national security" combine to overpower what can be seen as a dispensable luxury. Later, when the smoke has cleared, the attack on speech is seen as embarrassing and the laws are removed from the books -- until the next war.
A close look at the court's ruling itself, and American history both before and after 9/11, show that the right of the press to publish freely can never be taken for granted. There is reason to suspect that if a case similar to the Pentagon Papers were to come before the high court today, a very different ruling would result. And if President Bush succeeds in naming more right-wing justices to the court, that possibility would grow stronger still.
The list of America's shameful wartime retreats from civil liberties is long and starts even before the founding of the republic: during the Revolutionary War, New Hampshire declared that believing in the authority of the king of England was treasonous. President Lincoln suspended habeas corpus and seized the telegraph lines. World War I saw perhaps the worst assault on civil liberties, most notably the infamous Sedition Act of 1918, which forbade "[u]ttering, printing, writing, or publishing any disloyal, profane, scurrilous, or abusive language intended to cause contempt, scorn ... as regards the form of government of the United States." So extreme and hysterical was the World War I era's attack on free speech that it spurred the courts, which throughout the 19th century rarely dealt with issues arising from the Bill of Rights, to a series of rulings that essentially created America's uniquely far-ranging body of civil liberties law.
In World War II, Japanese-Americans were sent to concentration camps simply because of their ethnicity. And after the terrorist attacks of 9/11, a shellshocked Congress approved the USA PATRIOT Act, which expanded federal power and eroded privacy and equal protection freedoms in a number of areas. To this day, hundreds of individuals who have never been charged and whose identities have not been released are being held in harsh prisons without constitutional rights, while the government exercises greatly expanded wiretapping and surveillance powers. The Bush administration asked news organizations not to run videos released by Osama bin Laden, dubiously claiming that they might contain secret messages to terrorists: The media dutifully complied. Perhaps most chillingly, political protest -- the single type of speech the Founders were most concerned to protect -- has come under legal attack. A South Carolina man was charged with the federal crime of threatening the president's safety simply for holding a sign that read "No Blood for Oil" outside the locale of a Bush speech. Few have protested these measures.
In all of these cases, attacks on the First Amendment have been justified by "national security." Today, with the apparently eternal "war on terrorism" creating a quasi-permanent national security crisis, that argument may carry even more weight, as the courts grapple with the problem of how to balance the right to free speech with the executive branch's right to secrecy. As the Supreme Court's historic ruling Thursday overturning Texas' inhumane and outmoded sodomy laws showed, courts do not operate in a social vacuum; and after one of the few large-scale foreign attacks ever carried out inside the borders of the United States, with the public fearful and an already-secretive administration demanding a blank check to fight terrorism, courts are more likely to defer to executive branch arguments that national security is at stake -- as indeed they have repeatedly done in civil liberties cases arising from 9/11.
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The Pentagon Papers came into being because of Robert McNamara's angst. The chief architect of America's Vietnam policy, an ardent anti-communist who helped formulate the administration's doctrine that the Red menace had to be rolled back in Southeast Asia lest it spread throughout the region, McNamara gradually began to realize that the war could not be and indeed could never have been won. Stricken by guilt, in 1967 McNamara commissioned a study of how the U.S. came to be in Vietnam. The study, titled "History of U.S. Decision-Making Process on Vietnam Policy," was 7,000 pages long and filled 47 volumes. It provided support for several positions that antiwar critics had long asserted: that Viet Cong leader Ho Chi Minh -- America's former ally in World War II -- was regarded as a nationalist hero throughout the country; that the U.S.'s desire to crush the communist North was largely responsible for the breakdown of the 1954 Geneva settlement for Indochina; that in 1965 South Vietnamese President Thieu had said that the communists would likely win any election held in the country; and, most significantly, that American officials realized fairly early that the war could not be won militarily, but kept the war going anyway.
In short, McNamara's study supported the position that what was really going on in Vietnam was a war of national liberation, not the rise of a dangerous communist menace bent on exporting ideological mischief. More, it made clear that at a certain point America's leaders continued the war not to contain communism but because they didn't want to lose face by being defeated -- even though they knew they couldn't win. None of these things, of course, was revealed to the American people.
The Pentagon Papers were leaked to the New York Times and the Washington Post by a former hawk turned dove, Daniel Ellsberg, who had worked on the study for the RAND Corp. Ellsberg faced 115 years in prison for his act. But he hoped that by putting the papers in the hands of the press he would convince the U.S. to pull out of Vietnam. He was wrong: Nixon mined Haiphong harbor soon afterward, and Americans fought in Vietnam for two more bloody years. Their publication did, however, lead Nixon to create a team of so-called plumbers to make sure there were no more "leaks" -- and when the plumbers bungled their way into a place called the Watergate, they set in motion a train of events that eventually drove their vindictive, paranoid leader from the White House in disgrace.
After protracted study of the documents and contentious internal deliberations, the Times -- which had been increasingly critical of the Vietnam War -- published the first installment of the massive study on Sunday, July 13, 1971, under the cautious headline "Vietnam Archive: Pentagon Study Traces 3 Decades of Growing U.S. Involvement." At first, Nixon was unconcerned, believing that the purloined papers would be more embarrassing to Kennedy and Johnson than to his administration. But national security advisor Henry Kissinger convinced him that he should fight the publication. (According to David Rudenstine, author of "The Day the Presses Stopped: A History of the Pentagon Papers Case," Kissinger even went so far as to tell him that his failure to take action "shows you're a weakling, Mr. President.")
In the debate over what to do, Nixon chief of staff H.R. Haldeman summed up the impact of the papers with admirable prescience: "But out of the gobbledygook, comes a very clear thing: [unclear] you can't trust the government; you can't believe what they say; and you can't rely on their judgment; and the -- the implicit infallibility of presidents, which has been an accepted thing in America, is badly hurt by this, because it shows that people do things the President wants to do even though it's wrong, and the President can be wrong."
After the Times had published two excerpts, Attorney General John Mitchell sent a telegram to the paper, asking it to stop publishing the material and warning it that disclosing information that could jeopardize the security of the country was illegal and could result in a 10-year sentence. The Times refused. The government then asked for a temporary restraining order in a district court in New York.
