The Justice Departments disclosure that it had secretly subpoenaed phone records from the Associated Press has prompted a wave of comparisons between President Obama and Richard Nixon. Four decades ago, the Nixon administration attempted to block The New York Times from publishing a secret history of the Vietnam War leaked to the newspaper by whistleblower Daniel Ellsberg. Two days after the Times first published excerpts of what became known as the “Pentagon Papers,” the Nixon government asked for and received a Supreme Court injunction against the newspaper, arguing that publication of the documents posed a “grave and immediate danger to the security of the United States.”
James Goodale talking:
What the Pentagon Papers case is about is censorship. And lawyers call it “prior restraint.” And after publishing for three days, all of a sudden we were in court. And several days later, really, we were in the Supreme Court. So the Times came into it, because I believed and those at the Times believed that this was an outrage and that the First Amendment protected us and that the government had no ability to come in and tell us not what we shouldnt printsorry for the double negativeor what we should print. And we put our troops together and beat him.
the subtitle of the book is “Other Battles.” And the other battles are the reporterswhat we call “reporters privilege” battles. That is to say, the ability of the reporter to keep sources from being disclosed. And, hey, where are we today, where APits the very same thing as Earl Caldwell, who was a black reporter who tried to keep his information secret from Nixon. And it started right there.
He was virtually the only black reporter at The New York Times at that time. He gained access, I would think perhaps because he was into the Black Panther headquarters, and he gained their trust. So it was very important for the public to have someone who would explain the Black Panthers to the public. And his position was that if he had to say what he saw and tell what he knew, his credibility would be ruined.
Now, whats interesting about this case, and also its parallel to the Pentagon Papers case, is, when it went to the Supreme Court, where heI say he won, but other people say he lostsort of a tiebut he had to be taken back to court. Guess what? Nixon forgot about him. So why did Nixon bring it in the first place? You know why: because it was a political case and wasnt a real case. And I would suggest the Pentagon Papers case is not a real case; its a political case.
When IIve 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, its all a bunch of malarkey. There are no secrets. The case with the Pentagon Papers was a bunch ofbunch 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.
After the Pentagon Papers ended, which was a case about censorship, Mitchell, who was Nixons attorney general, got very excited about prosecuting The New York Times. People have forgotten about that. So he convened a grand jury in Boston, because there was some evidence that the Pentagon Papers had been circulated in the antiwar community before they were published by The New York Times. And the theory was that the New York Times reporter conspired with those antiwar protesters, and he was going to indict them for conspiracy.
So, now, fast-forward. What is Obama doing? Hes convened a grand jury. We havent heard about it; I think its still there. I think it may have even indicted Assange in secrecy. But whats the charge? Conspiracy. Well, we dont expect our listeners to be lawyers and jump up and down when they hear the word “conspiracy.” I just want to tell you in the audience, its very easy to prove conspiracy, very hard to prove espionage under the Espionage Act. So what Obama is doing is doing an end run and trying to get an easy case against Assange, after hes convicted Manning. Its easy to convict Manning, OK? So that easy conviction then becomes the basis for the agreement for Assange.
So, my book is meant to be a clarion call to the journalist community: Wake up! Theres danger out there. You may not like Assange, but wake up! The First Amendment is really going to be damaged, if Obama goes forward. And as I said at the beginning of the show, if he does and succeeds, he will have succeeded where Nixon failed.
JULIAN ASSANGE: Now, the new interpretation of the Espionage Act that the Pentagon is trying to hammer in to the legal system, and which the Department of Justice is complicit in, would mean the end of national security journalism in the United States, and not only the United States, because the Pentagon is trying to apply this extraterritorially. Why would it be the end of national security journalism? Because the interpretation is that if any document that the U.S. government claims to be classified is given to a journalist, who then makes any part of it public, that journalist has committed espionage, and the person who gave them the material has committed the crime, communicating with the enemy.
James Goodale talking:
Obama has classified, I think, seven millionin one year, classified seven million documents. Everything is classified. So that would give the government the ability to control all its information on the theory that its classified. And if anybody asks for it and gets it, theyre complicit, and theyre going to go to jail. So that criminalizes the process, and it means that the dissemination of information, which is inevitable, out of the classified sources of that information will be stopped.
The irony of the Obama administration, after the news of their surveillance of the AP comes out, then going to Chuck Schumer and saying, “We need a stronger shield law”.
I have this whole history in my book. And I just thought that was quite ridiculous, because the bill that Obama asked Schumer to put into the House has an exception for national security. In other words, if youre a reporter and youre talking about national security, the law doesnt apply. But what is the whole controversy about today with respect to AP? Its about a national security exception to the privilege that you would think reporters would otherwise have. So, Obama puts it out, thinking the public doesnt know what I know, and Im really going to be good to reporters, but it doesnt protect them at all in the AP situation.
When the Pentagon Papers came out, all the journalists and publishers said its a new era. The government isnt going to be able to keep the secrets anymorewhich they arent secrets, anyway, in my humble opinion. Theyre not going to be able to hold back the information. Weve had this great victory.
But now we are X years later, and weve got Obama, who indicted six journalists. I said thats terrible, in my book. But look what were talking about in the AP situation. Hes trying to find a source who he can indict who will be the seventh. The secrecy has increased during the Obama administration. We have gone nowhere in terms of that.
But we do have a very good precedent that Obama cant stop the press before printing. That was good. But lets face it. In the digital age, no one cares about that anymore. In the digital age, the action is what the government will do after publication, after Assange has published. What are the rules there? So, this is a new chapter in the history of the Pentagon Papers.
– source democracynow.org
James Goodale, general counsel for The New York Times in the Pentagon Papers case. He is author of the new book, Fighting for the Press: Why the Pentagon Papers Case Still Matters.