Richard Nisley

The Pentagon Papers Case
History - American Released - Oct 05, 2019
It was among the most famous First Amendment decisions the Supreme Court would ever make–and they had very little time in which to make it. The case before the Court was New York Times v. United States, concerning publication of "The Pentagon Papers", classified memos detailing the U.S. government's controversial handling of the Vietnam War. The U.S. Department of Justice filed a motion seeking a temporary restraining order to prevent the New York Times from releasing any more classified information. The Times then filed suit to have the restraining order lifted. The decision and the story behind it is the subject of "Fighting Censorship: New York Times v. United States" a 2017 book by D. J. Herta. The writing is clear, the story is well-documented, but the book is intended for a juvenile readership, therefore somewhat repetitive and tedious to read.

Background: at some point in the late 1960s, with American involvement in the Vietnam War going badly, Secretary of Defense Robert McNamara ordered a secret study of the Vietnam War from its inception in 1945, up to the present time. One of those involved with the study was a bright young scholar named Daniel Ellsberg.

After gradating with honors from Harvard University, Ellsberg served two years in the U.S. Marine Corps. In 1959, he joined the RAND Corporation–a research center (or "think tank") located in Santa Monica, California. In 1964, Ellsberg was recruited by McNamara to work for the Pentagon. The following year, as a consultant for the Defenses Department, he was sent to South Vietnam. While there he worked on a special team whose mission was to locate and identify enemy spies. Ellsberg returned to the U.S., and in 1967, he rejoined the RAND Corporation but remained active as a consultant to the U.S. Governments on matters concerning America's involvement in the war in Vietnam. During this time, he was asked by McNamara to help develop a secret study of the making of American policies concerning the war. Later, this became known as "The Pentagon Papers."

All the while Ellsberg became increasingly disenchanted with the war, particularly with how the government lied to the American people about how the war was proceeding. Particularly bothersome was the fact that as early as 1965, the Johnson Administration knew the war was not winnable; but continued calling up American boys to fight and die for what amounted to a lost cause.

Before leaving RAND in 1969, Ellsberg became involved in the anti-war movement. At some point, he made a photo-copy of the Pentagon Papers (a copy was located in a RAND filing cabinet) intending to give it to the national press–believing that once the American people learned of Washington's deception, they would demand an immediate end to American involvement. The first newspaper given a copy was the New York Times. They did not publish the entire document which was several thousand pages long, but rather wrote a series of reader-friendly summaries, which they planned to publish in installments. The first installment was published June 15, 1971.

Meanwhile, the Washington Post sought and obtained a copy as well, which like the Times they summarized for publication. By the time they published their first installment, the New York Times had been ordered to stop by a federal court order; to be in compliance, the Post stopped publication of its series.

By now Richard Nixon was in the second year of his presidency, managing the war with policies little changed from those developed by the Kennedy/Johnson Administrations. When the New York Times published the first installment of the Pentagon Papers, Nixon sought an injunction demanding the newspaper cease publication immediately. He was particular embittered because of what the Papers said about the American presidency. As Donald Rumsfeld (then counsellor to the president) put it: "To the ordinary guy, all this is a bunch of gobbledygook. But out of the gobbledygook comes a very clear thing.... You can't trust the government; you can't believe what they say; and can't rely on their judgement; and the implicit infallibility of the 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."

Nixon's lawyers argued that publication of the Pentagon Papers would jeopardize national security. These were classified documents in the newspaper's possession that could damage the ability of the United States to conduct its operations in Vietnam. Some of the material might even prove harmful to U.S. workers stationed in foreign countries around the world. Should the wrong people read the documents, they might be able to unmask the true identity of some of the undercover operatives, thus placing them in extreme danger.

On June 16, 1971, at the request of the Department of Justice, Judge Murray Gurfien of the US District Court for the Southern District of New York, issued a restraining order.

The Times agreed to comply, planning to present their arguments against a permanent injunction at a court hearing scheduled for that Friday. The basis for the newspapers' defense was one of the most basic concepts in American law–freedom of the press.

Just because the government claimed that some of the material was top secret, it is not necessarily so, they argued. There had been cases–and this was one of them–in which "classified" material had actually been kept from the public, not because releasing it might jeopardize national security, but because doing so might embarrass the government or make it look bad in the eyes of other governments and the American public. In time of war or national emergency, the government has the right to classify secret information, they acknowledged, but this was not one of them. The nation is not at war (at least not officially; as no war had been declared by Congress); and there was no immediate national security at stake.

In this case, ordering the national press to cease publication amounted to "prior restraint" and, in a 1931 Supreme Court decision (Near v. Minnesota), the Supreme Court had ruled for the defense, saying that "prior restraint" violated the First Amendment of the U.S. Constitution.

After oral arguments, Judge Gurfien announced he would have a decision by the following morning. The next day, Saturday, June 19, Gurfien denied the government's motion for a permanent injunction against the New York Times. Within minutes of announcing his decision, the attorneys for the government appealed the case to Judge Irving R. Kaufman of the Second Court of Appeals. After reading the government's argument, Judge Kaufman granted a stay–or a postponement–of the lower court's decision until the following Monday.

On Monday, June 21, a panel of three judges heard the government's case, and decided to continue the stay, until the full eight-judge Court of Appeals for the Second Circuit Court could hear oral arguments for both sides. The hearing was held on Wednesday, June 23. Late in the day, the Second Circuit Court of Appeals, in 5-3 decision–in light of new evidence introduced by the government–voted to send the case back to Judge Gurfien for further hearing.

The following day, Thursday, June 24, the attorneys for the Times filed a writ of certiorari–a request that would elevate their case against the government to the highest court in the land: the U.S. Supreme Court. At the same time, the High Court would also consider another First Amendment case under appeal: United States v. Washington Post.

The Supreme Court acknowledged the importance of both cases by scheduling a rare Saturday session to hear arguments. On June 26, attorneys for both sides met inside the main chambers of the U.S. Supreme Court building in Washington, DC, to present their oral arguments.

The Court's final meeting for the 1970-71 term was scheduled for Monday, June 28. If the Court was going to issue an opinion during this term, it would have to act quickly. The Court did not issue its decision on Monday, June 28, as expected, but on Wednesday, June 30. On that day, at 2:30 p.m. in a hushed courtroom, Chief Justice Warren E. Burger read the Court's decision. In 6-3 split vote, the Court majority ruled as follows: "Any system of prior restraint of expression comes to this Court bearing a heavy presumption against its constitutional validity . . . The Government thus carries a heavy burden of showing justification for the imposition of such a restraint. . . . The District Court for the Southern District of New York in the New York case, and the Court of Appeals for the District of Columbia Circuit in the Washington Post case, held that the Government had not me that burden. We agree."

In a separate and concurring opinion, Justice Hugo Black wrote: "Paramount among the responsibilities of a free pass 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 my view, far from deserving condemnation for their courageous reporting, the New York Times and the Washington Post and other newspapers should be commended for serving the purpose that the Founding Fathers saw clearly. In revealing the workings of Government that led to the Vietnam War, the newspapers did precisely that which the Founders hoped and trusted they would to."

Further on he wrote: "The Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors."

And then there is the following quote by Thomas Jefferson (which I discovered while writing this piece). "A press that is free to investigate and criticize the government is absolutely essential in a nation that practices self-government. . . ."

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