Leading First Amendment lawyer James C. Goodale said that President Obama should take a lesson from the Pentagon Papers case and rethink his approach to conflicts between national security and the First Amendment. Goodale, who served as vice chairman of The New York Times and was the Times’ general counsel during the Pentagon Papers litigation in 1971, made these remarks during the 28th Annual Silha Lecture on Oct. 16, 2013 at the University of Minnesota’s Cowles Auditorium.
“All of a sudden in the last six months, all of the issues in that case have come to life and have been part of the news cycle,” Goodale, who has been a partner in Debevoise & Plimpton LLP in New York City, served as chairman of the Committee to Protect Journalists, and has taught at Yale, NYU and Fordham law schools, said.
Goodale shared stories of the litigation surrounding the Pentagon Papers case and his thoughts on recent conflicts between national security and the First Amendment during the lecture, titled “The Lessons of the Pentagon Papers: Has Obama Learned Them?” The lecture, which was followed by a question-and-answer session, drew an audience of more than 300 people. Following the lecture, Goodale signed copies of his new book Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles.
The Pentagon Papers case, New York Times Co. v. United States, 403 U.S. 713 (1971), teaches two important lessons, according to Goodale. First, government officials “ignore the First Amendment at their peril.” Second, individuals “should not buy claims of national security made by the government hook, line, and sinker.”
Goodale began the lecture by providing an overview of the Pentagon Papers case and the circumstances surrounding it. He explained that the Pentagon Papers were a 47-volume history of American relations with Vietnam. Daniel Ellsberg, a military analyst, believed the American people needed to see them, and so he shared them with various newspapers around the country. The government tried to stop two of those papers, the Washington Post and The New York Times, from publishing them, which led to the case that reached the Supreme Court.
“It’s a case for the ages,” Goodale explained, because it determined that in cases of prior restraint, “unless the government can show directly, immediately, and irreparably that harm will happen to national security, then the government loses.” He explained that the government failed to meet this heavy burden in the Pentagon Papers case. The Supreme Court allowed the publication of the Pentagon Papers to go forward, providing American citizens with more information about relations with Vietnam than they had ever seen before.
Goodale shared anecdotes highlighting why government claims of national security are not to be trusted. For example, he said the biggest lie the government told in the Pentagon Papers case was that the papers would show that the United States had broken the North Vietnamese code, which would be damaging to national security. To prove this, the government presented various judges with a classified document that it claimed would demonstrate the harm the leak would cause. When Washington Post reporter George Wilson saw the government present the United States Supreme Court with the document, he recognized it immediately: it had already appeared in the Congressional Record.
Incidents like this, Goodale said, have caused him to mistrust the “intelligence establishment,” including the National Security Agency. The intelligence establishment is “a unitary group which does not subject itself to criticism,” Goodale said. “They get their own way through misdeeds and lying.”
Goodale emphasized that the Pentagon Papers’ lessons remain relevant today, particularly with the NSA in the media spotlight. He cited this year’s revelations about the NSA surveillance programs and the Obama administration’s prosecution of leakers. (For more information about this trend, see “Open Government Advocates Criticize Obama’s Prosecution of Leakers” in the Winter/Spring 2011 issue of the Silha Bulletin, and “Manning, Kiriakou Face Punishment for Blowing the Whistle on the War on Terror” in the Winter/Spring 2013 issue.)
Goodale noted that the Obama administration has indicted seven individuals for leaking classified information. All previous administrations put together had indicted only three. These indictments have “created an atmosphere of fear in Washington, which has made it very hard for the press to gather news and write stories,” he explained, citing an October 2013 report from the Committee to Protect Journalists that reached the same conclusion.
Goodale also offered opinions about many of the recent cases of reporters and leakers facing legal trouble. He said that President Obama has said “some strange things about the Espionage Act,” which the administration has used to prosecute leakers. Leakers are not spies, Goodale said. Rather, “they are giving information as whistleblowers to the press to publish it” because they believe the public has the right to know about an issue.
In particular, Goodale discussed the case of James Risen, a New York Times reporter who the United States Court of Appeals for the Fourth Circuit has ordered to testify in a case against a source who allegedly leaked information about Iran’s nuclear program. (For more information on the Fourth Circuit’s decision, see “Reporters Struggle to Claim Privilege to Avoid Testifying About Confidential Sources” on page 10 of this issue of the Silha Bulletin.)
“Risen has said he will go to jail when push comes to shove,” Goodale said, pointing out that Risen won a Pulitzer Prize in 2007 for National Reporting on a series of stories about the NSA. Goodale noted that if the Obama administration continues to try to force Risen to testify against his source should the United States Supreme Court hear Risen’s case, Obama would be “in the driver’s seat,” and would be responsible for putting Risen in jail.
Goodale explained that he wrote his new book on the Pentagon Papers to issue a call for debate on the issues related to Wikileaks and the possible indictment of Julian Assange. “Obama is going to cause a lot of trouble if he prosecutes Julian Assange,” Goodale argued. Former Assange lawyer Mark Stephens discussed the issues surrounding Assange at the 2011 Silha Lecture. (For more on Wikileaks and the possible indictment of Julian Assange, see “The Obama Administration Takes on Government Leakers; Transparency May be a Casualty” in the Winter/Spring 2012 issue and “WikiLeaks Founder Assange Seeks Asylum in Ecuador” in the Summer 2012 issue of the Silha Bulletin. For more information on Mark Stephens’ lecture, see “Silha Lecture Highlights Free Speech in the Digital Age” in the Fall 2011 issue of the Silha Bulletin.)
Goodale also discussed former defense contractor Edward Snowden’s leaks about the NSA surveillance programs. (For more on Snowden’s leaks, see “Snowden Leaks Reveal Extensive National Security Agency Monitoring of Telephone and Internet Communication” in the Summer 2013 issue of the Silha Bulletin, and “Snowden Leaks Continue to Reveal NSA Surveillance Programs, Drive U.S. and International Protests and Reforms” on the first page of this issue.) “I think that Snowden has done a public service,” he said. “If we did not have Snowden, we would not have the debate going on now” about surveillance, privacy and national security. However, Goodale said that he believes that Snowden should return to the United States to face prosecution. “He is a civil dissident, and a dissident has to face the risks of disobeying the law,” Goodale explained. “He should come back and face the music.”
Goodale also addressed the possibility of a federal shield law to protect reporters from having to divulge their sources. (For more information on the current status of a federal shield law, see “Senate Considers Federal Reporter’s Privilege Bill” on page 8 of this issue of the Silha Bulletin). Goodale said he supports a federal shield law, but he acknowledged that new technology and the ability for any citizen to have a Twitter account, blog, or other means of sharing information make defining who qualifies for the shield law difficult. He explained that President Obama supported a federal shield law prior to becoming president. Since his election, President Obama only supports a shield law with a “huge gaping hole” in it for national security, Goodale explained.
“In every instance that I know about, Obama has chosen to favor national security over the First Amendment,” Goodale said. “But isn’t the lesson of the Pentagon Papers just the reverse?” Goodale concluded, therefore, that “President Obama has not learned the lessons of the Pentagon Papers.”
A future president, Goodale hopes, would “push back.”
“That’s what Obama hasn’t done,” he said. “When faced with a choice of trying to balance national security and the First Amendment, he’s always chosen national security — I hope we get a president the next time around who is more sophisticated about national security.”
His hope is “that there will be some real debate . . . and . . . both sides of the aisle can see the issue with national security” trumping the First Amendment. At present, Goodale said he does not “see any end in the First Amendment fracas that Obama has geared up. He has ignored the First Amendment at his peril.”
A video of the lecture is available on the Silha Center website at silha.umn.edu. Silha Center activities, including the annual lecture, are made possible by a generous endowment from the late Otto Silha and his wife, Helen.
– Cassie Batchelder
Silha Research Assistant