A stream of national security leaks has lately turned into a tsunami, plunging the country into the most intense controversy over the publication of government secrets since the 1971 Pentagon Papers case. As we wade through the issues raised by the illicitly disclosed information now flowing out of Washington, it is a useful moment to look back at that seminal legal battle. More than a few books tell the story of Daniel Ellsberg’s famous leak of a trove of secret Defense Department documents to the New York Times and other newspapers and Richard Nixon’s subsequent efforts to stop the presses. A new volume by an inside player in the great legal drama has now, four decades later, joined the crowd.
James C. Goodale offers a view of events as seen from his perch as general counsel at the Times during the case. Goodale was not a First Amendment lawyer back when the case broke; the general counsels of great newspapers in that era were typically more concerned with business dealings than with constitutional niceties. He had to get up to speed, and he immersed himself in the intricacies of the espionage statutes.
His reading of both the law and the purloined documents themselves led him to favor publication. His own experience as an intelligence officer in the Army—where he and his colleagues regularly clipped articles from the New York Times, stamped them “secret,” and locked them in a vault—had already convinced him that the workings of the secrecy system were “nonsensical.” The documents taken by Ellsberg were historical in nature: Not one of them was from the Nixon era, which was already well into its third year, and nothing in them, Goodale believed, would cause harm to national security—least of all the kind of grave harm that might trump the newspaper’s right to publish under the First Amendment.
But matters were not so simple. First, there were internal battles at the Times to fight. Arthur Ochs “Punch” Sulzberger, the paper’s proprietor, wanted the opinion of outside counsel. Should the newspaper face a criminal indictment, both its reputation and its economic survival would be at stake. Sulzberger bypassed an infuriated Goodale and turned to the law firm of Lord, Day & Lord, a pillar of the New York legal firmament, for guidance. Lord, Day & Lord was represented by its senior partner, Louis Loeb, who, among other items on his résumé, had, himself, served as general counsel of the Times for two decades. Loeb’s position, as summarized by Goodale, was that it would “not only . . . be a crime to publish classified information, but it would be a crime even to look at the Pentagon Papers, because they were classified.”
Loeb’s arguments—unthinkably quaint today—did not prevail. Indeed, his demurral on publication contributed to the demise of his 150-year-old law firm. The Times went forward, Attorney General John Mitchell filed for a restraining order, the presses temporarily halted, and the case moved in rapid-fire succession up the rungs of the judicial system, from trial court to appeals court to the Supreme Court.
Goodale believes that the Supreme Court, in its momentous 6-3 ruling denying Mitchell’s request for an injunction, made the right call. And it would be churlish to argue the point. The government found it impossible to prove to the satisfaction of the Court that disclosure of the materials in the 7,000 copied pages would cause the kind of grave harm that would justify a prior restraint, a measure not rooted in any statute and without precedent in federal court. Indeed, the government’s hastily concocted claims about damage were breathtakingly weak.
Goodale—and not only Goodale, but an entire generation of journalists—came away from this searing battle with the Nixon administration believing that government claims about the importance of secrecy are almost always spurious. Indeed, intense skepticism about government justifications for secrecy is one of the defining legacies of the case. Through his ill-considered actions in the Pentagon Papers case, Richard Nixon poisoned a well. And it is from that well that we are all forced to drink today.
Some of that poison is evident in the concluding chapters of Goodale’s book, when he takes up the problems of secrecy under George W. Bush and Barack Obama. Goodale sees in the government’s efforts to stanch national security leaks nothing more than a continuing “war against the press.” In Bush’s case, the war was “very much like Nixon’s,” while Barack Obama, for his part, has “seamlessly carried forward the main ingredients of Bush’s war against the press.”
In support of these propositions, Goodale reprises the government’s response to the main leaks cases of the last several years—including, under Bush, the New York Times’s 2005 publication of details of the National Security Agency’s terrorist surveillance program, the American Israel Public Affairs Committee (AIPAC) case, and the Valerie Plame-Judith Miller affair; and, under Obama, the government’s pursuit of Bradley Manning and five other leakers.
Unfortunately, Fighting for the Press here turns from engaging personal memoir to unpersuasive polemic. Goodale is a careful lawyer, but in tackling contemporary developments, a variety of deficiencies crop up in his brief. Not only are there significant errors in his telling of the details, but the argument, as a whole, does not add up.
Thus, the AIPAC defendants, to begin with a nontrivial error, were not “paid lobbyists for Israel,” as Goodale states, suggesting thereby that they were agents of a foreign power (which, if true, would have put quite a different legal coloration on their case). Rather, AIPAC is an American lobbying organization. It is also a mighty stretch to cite the case as a component of George W. Bush’s effort to crush the press. The prosecution of the two AIPAC men was launched by career prosecutors in the Justice Department, who worked in tandem with FBI investigators; for the Bush White House, the case was a political embarrassment and certainly not part of any strategy for reining in the media.
By the same token, it is a leap to cite the imprisonment of Times reporter Judith Miller as part of Bush’s supposed war against the press. It was the special prosecutor Patrick Fitzgerald, operating independently of the administration—indeed, he was investigating the administration—who asked a federal judge to lock up Judith Miller on contempt charges. The Bush White House had nothing to do with it.
In his treatment of the Obama administration’s “war against the press,” Goodale is similarly unjust. One need not agree with every step Barack Obama has taken to combat leaks—and one can believe that he and his Justice Department have, in some instances, overreached—to see that Goodale goes much further than such reasonable propositions in trying to stuff all the evidence into a box in which it does not fit.
He thus speculates that Obama has been hawkish on secrecy so as “to placate the intelligence community after he declassified the so-called ‘torture memos.’ ” Goodale also suggests that this is all part of a political game played by Obama to give him credibility as a hawk in the face of Republican taunts for being “ ‘soft’ on national security.” At no moment does Goodale pause to consider whether, in the post-9/11 era, the government might need to operate in secret or that the public might be severely harmed by the publication of secrets.
Obama, burdened with the responsibility of high office, clearly has recognized that reality; Goodale has not. That Richard Nixon poisoned the well is not an excuse for failing to think seriously about the legitimate place of national security secrecy in a democratic society.
Gabriel Schoenfeld is the author of Necessary Secrets: National Security, the Media, and the Rule of Law and, most recently, A Bad Day on the Romney Campaign: An Insider’s Account.