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james goodale

As The New York Times' general counsel, Goodale sucessfully defended the Pentagon Papers publication before the U.S. Supreme Court in 1971. He also defended Times reporter Earl Caldwell's right to protect information about his sources in the landmark Branzburg v. Hayes case, in which the Supreme Court ruled that the First Amendment does not protect reporters from having to testify in front of a grand jury. Goodale flatly rejects the Supreme Court's verdict and has since gone on to lead a state-by-state legal battle to institute shield laws to protect journalists. This is the edited transcript of an interview conducted on Oct. 18, 2006.

... What happened when you were confronted with the issue of the Pentagon Papers?

When I was confronted with the issue of the Pentagon Papers, I immediately knew that there was no law that governed the publication of the Pentagon Papers. After realizing what the legal scoop was, my reaction was to figure out, politically and practically, how to get the thing published. That was my reaction.

What do you mean, "no law"?

There is no law that covers the leaking of information, believe it or not. And it certainly doesn't cover the publication of leaks, because there's no law.

Wait a second. The Pentagon Papers were classified, right, top secret?

Right.

We've got an Espionage Act.

Well, that's right. But what you've said is, "It was classified" and, "We have the Espionage Act." And it's not surprising, when you look at the Espionage Act, what does it cover? It covers espionage; it doesn't cover leaking.

During the President Clinton administration, Congress passed an anti-leaking law and Clinton vetoed it. But they had to pass it because there wasn't one, and the reason there isn't one is because of the First Amendment. We're not in England, where they have an Official Secrets Act. ...

Let me take you back again to 1970, to the Pentagon Papers. You see these documents, ... and it's the secret history put together by the Defense Department of what actually happened in Vietnam, not what the government said -- what the government knew. And you don't say, "How can we run this?"

Oh, yes. I say, "How can we run this?" But you know what? I read it. ... I go to the first volume. It covers the history of Vietnam after the Second World War, in the '40s. ... And there are footnotes, and I go down there and look at the footnotes. "New York Times, Jan. 1, 1946." Flip the page: "New York Times, New York Times." I later have been told that there were 200 pages in the Pentagon Papers that were effectively repeats of what had been printed in The New York Times.

“If you want to be good in court, forget the law, look at the common sense of it...”

What I said to myself when I saw all those footnotes was: "Come on. The government's going to stop us from publishing what we've already published? They can't do that. ... I don't care what any law says." ... And when I go back and look at the law, there's no law there.

Furthermore, as a matter of common sense, you've got to forget the law on these things. You've just got to be sort of practical about it. When you take material to a court, and they see that it's already been published by The New York Times, they're going to have a lot of doubts about taking any legal action against you, as the whole thing seems so silly. ...

... "Forget the law"? I thought you were a lawyer.

Yeah. Well, a good lawyer knows the law. I still know the law, but if you want to be good in court, forget the law, look at the common sense of it, and see what the reaction's going to be of someone to whom you are talking. ... In these press cases, it's a judge, not a jury. You have to persuade that person -- just like I'm talking to you -- that you've got a rational, common-sense position that isn't complicated by law, which, frankly, most judges don't understand. ... If you can get them to understand that you've got a common-sense position, then you bring in the First Amendment and tell him why the common sense is reflected in the law. Law is a monopoly of a lot of people trying to make money because they think they've got something special, but the bottom line is, if the law doesn't make any sense, it's not going to work.

Not everybody agreed with you.

No, that's quite true -- including former Attorney General of the United States [Herbert Brownell], ... the former assistant ambassador of the United Nations [and Times executive vice president, Harding Bancroft], who [was] my boss. ... They took the position that since it was classified, they thought they were committing a crime by even looking at the first page. So I couldn't join issue with them with respect to what's in it, because they wouldn't look at it.

So what did you think at that point?

I was furious. What happened ultimately is that they communicated what I've just communicated to you to the high command of The New York Times and, in my view, had persuaded them not to publish the Pentagon Papers. I was furious, and I think there may have been others who were furious. ...

What happened?

... I'm really not sure how, after it was killed by the lawyers, how it revived. I think probably what happened was that Abe Rosenthal, who was then the editor of the Times, wouldn't give up, and he convinced Punch Sulzberger, who was the owner of The New York Times, ... that if you let the newspeople of The New York Times down, you're going to have a terrible, terrible future, because they won't want to work for you. I know Abe said to himself, "And I won't work for you," but I don't think he told that to Punch Sulzberger. As a consequence of that, all of a sudden it revived, and I was back into the picture, telling them how to publish it. But we had a few more events before we got it all published. ...

It came out on a Sunday and on Monday we were doing well. ... And then, I think it was a Tuesday afternoon, I'd checked in, "Is everything okay?" And my boss, who was opposed to publication, said, "Well, you better come on over." So I ran out, hopped in a cab, shot into the New York Times. Went up to the executive floor, which is the 14th floor. And I walked into a room where there was a huge screaming match going on.

... The government had sent a telegram to The New York Times saying, "Stop publication, or we're going to sue you in court the next day." ... So the issue was, do we obey the government, or do we make the government come after us? And that was the subject of this terrific argument. ... Punch [Sulzburger] said, "Well let me speak to Jim." And, so I had him on the phone -- he said, "Jim, what do you think we ought to do?" And I said, "I think you've got to publish." He said, "Well, what about ... the criminal liability?" I said, "I think that's a risk you can take, and if they stop us, I think we can win that, too."

He said, "OK, go with it." So we didn't stop publishing. We published another night. The next day, we were in court. ...

And what happened?

We won! (Laughs.) [It] was a great case. This happened sometime ago, but you can't stop talking about it, because what happened is that in that short period of time, of 10 days, ... we went through the whole court system. ... The Supreme Court's the top court, and we're right up there on a Saturday. We argued the case, and shortly thereafter, the following week, we won -- six votes for us and three votes for the government. Fun.

... Constitutional law is an interesting thing -- it reflects the politics of the moment. Vietnam war -- terrific public antipathy towards the administration and a lot of popular support for the New York Times. When I went into the courtroom, people hissed, shouted -- they were crowded. It was like the Scopes trial. And none in favor of the government.

You were happy?

Oh, was I happy. ... I thought I should be exhausted, so I came back from the Times the day of the decision, and I went to bed about 4:00 in the afternoon, and I said, "Well, I should get some sleep; I must be exhausted." But all of a sudden I said to myself: "Holy God, I knocked [off] the former attorney general of the United States. I knocked off the president. ... Jesus, I knocked off everybody." And all of a sudden, I couldn't sleep. I said: "Oh, my God. ... I can't believe it. I can't believe what's happened." It's like being Miss America. Me?

But were people really afraid of going to jail? They could have seized the newspaper.

They could have. I think that the more likely scenario that everyone feared was the fact that they could have gone to jail. The reason that people thought that they had a criminal risk was that Herbert Brownell was a very reasonable person -- the former attorney general of the United States -- ... and he advised the Times that it was a crime. So now you have the former attorney general of the United States, a partner in your law firm, advising you that it's a crime. You have to take that seriously. ...

And you had another case ... that was coming up through the courts.

Yeah, it was Branzburg-Caldwell. ... We talk about the Branzburg case -- to me, it's not the Branzburg case, it's my case. It's the Caldwell case, but anyway. ... The chronology is, in 1971, the Pentagon Papers case broke. But in 1969, ... the first reporter's privilege case in this country of any consequence was tried in the courts. ... That was a huge case for me personally. ...

What was this case? ... What were the facts?

Well, what happened in this case, which is now called Branzburg, is that it started with a black reporter whose name is Earl Caldwell. Earl Caldwell was covering the Black Panthers in the late 1960s. ... And in 1969 -- I forget exactly when, February or March -- he received a subpoena from the U.S. government that was investigating threats made to the president by Black Panthers. He did not want to disclose any of his conversations with the Black Panthers, any of his sources, and he asked me what to do. ... And I said, without even consulting with anyone, "We're going to fight it."

Well, you may say, "So what?," because news organizations are fighting subpoenas all the time. Big deal. I mean, this was a big deal, because in the preceding two weeks, the Nixon administration ... had made a case somewhat that the press ought to be coughing up information to it.

Secondly, during that period of time, Nixon had a campaign going against the press. ... Bill Safire is writing speeches for then-Vice President [Spiro] Agnew with [Pat] Buchanan, and they're picking on the press. It was a huge press battle. So this case became a symbol of that battle. ... This case became a case of the press standing up to the government. And it's very much like the Pentagon Papers, which happened later -- the press standing up to the government. ...

What happened in a nutshell thereafter was that we won in the District Court; we won in the Court of Appeals, and that case went to the Supreme Court. The courts recognized the [reporter's] privilege in the District Court of California, recognized the privilege again in the Court of Appeals in California. And then that case went to the Supreme Court, but it wasn't under the name of Caldwell.

But first of all, you say "the privilege." What privilege?

... What we wanted to argue was that reporters did not have to testify under all circumstances. The government wanted to have an absolute position: "Whenever we want your information, reporters, you give it to us." Our position was, "No, you can't do that." We did not take an absolute position. ... What the press argued was that it did not have to give information or testimony to the government under all circumstances, only some special circumstances, which didn't exist in this case.

Even if it's a grand jury? Even if it's a federal grand jury?

Even if it's a grand jury. Doesn't make any difference who it is. We're the press; ... we're over here, this information is ours. You're over there, the government, and the twain shall never meet. We want to have some distance between the two of us, a line between the two of us. … The press can't be the arm of law enforcement because if it is, there's no ability for the public, for which the press is a surrogate, to criticize the government and look into what the government's done wrong. ...

To create that separateness, we came up with this idea that we, the reporters, should have a privilege -- namely, the reporter's privilege -- not to cough up this information every time the government wants it. This case involved a grand jury subpoena, and we told the government that the grand jury can't get this information unless you can show us that it's absolutely essential, that you really need it. And the judge bought the argument.

So it went up from the District Court --

And then it was ultimately appealed to the Court of Appeals, and they affirmed it, effectively. And then it went to the Supreme Court. ... But it went up with other cases. ...

What happened was all of a sudden, the same thing happened throughout the country. ... In Massachusetts and in Kentucky, two prosecutors, for whatever reason -- perhaps they saw what the government was doing -- sought to get information for its purposes for the state. ... In the case of Branzburg, the state prosecutor wanted information that [Louisville Courier-Journal reporter Paul] Branzburg had, effectively, about making marijuana. ...

In that case he lost, so he went up to the Supreme Court as a loser, along with Earl Caldwell, a winner, and [Massachusetts television reporter Paul] Pappas, a loser. So those three cases were combined, and I lost the name Caldwell because C comes after B. Branzburg is the name of the case.

And what did [the Branzburg case] decide?

... When the case came out and everybody had to read it quickly for next day's paper, it was reported that the case decided the press had no rights at all with respect to protecting this information. There was no reporter's privilege in the federal courts. ... I just wasn't going to buy that argument.

What do you mean, you weren't going to buy the argument? It's called the Supreme Court for a reason.

I know, but there's always a way to win press cases, I think. ... This is after the Pentagon Papers suits, by the way -- starts before, ends after. This is 1972. I won the Pentagon Papers all by myself, you know. ... After a while it goes to your head. But I could not as a practical matter go back to my pals in the newsroom and say, "I can't protect you because the Supreme Court has taken all your protection." You can't do that. ...

So I went back. I sent my family away, locked myself into a room in my apartment. The air conditioning was turned off, and I sweated out five pounds and a theory how the Branzburg case actually created a reporter's privilege for reporters, even though it seemed to have done the exact opposite.

You created a fantasy in your own mind?

(Laughs.) Some have said so, yes. Well, what happened was, in the Supreme Court you get nine votes, and in this particular case, you get ... four [opinions] ... against us, four [for us], and one in the middle, [Justice Lewis] Powell. Powell's the middle guy. Powell says effectively, "OK, I'm with you against the press on this case -- that's the grand jury subpoenas, under these circumstances -- but in other cases, there should be an ability for the press to deal with the subpoenas." He didn't spell out exactly what he meant.

So I said, well, look, if ... he's one and I've got four over here, last time I knew that made five, and that's more than the four that voted against me. So if I get another case that is perhaps a little different than Caldwell's case, I will argue that those five votes create a reporter's privilege. …

I had called a whole bunch of people before the case started to see if they would support me, The New York Times, in the Supreme Court. Well, I went back to all these people and I said: "I'm going to have a seminar and we're going to discuss freedom of the press. We're also going to discuss my little article [reinterpreting the Branzburg decision], and I'll see if I can persuade you to take that article and go back and fight this thing out state by state by state by state until we end up with enough body of law so that there's protection for reporters." …

I've been doing that for 35 years now, every year. ... Our theory was, and is still, ... go back and fight this thing out state by state by state by state until we end up with enough body of law so that there's protection for reporters. ... Get the state courts and the federal courts sitting in a state area, see if they can adopt my idea in this ... article; get lots and lots of cases, and we'll build up a whole body of protection for reporters. That was the theory. ...

The Supreme Court just refused to review the Branzburg decision in the Miller case.

Oh, well, that doesn't mean anything. The Supreme Court doesn't want to get into this because it's such a real difficult situation. ... [The] Supreme Court wants to let this thing get batted around in the lower courts forever, as long as they can, so they don't have to get into it, because it's a difficult issue. It's a difficult issue even when you take my privilege because you have to apply it, and it's not easy to figure out when you should testify, when you shouldn't. It's a very complicated issue.

But I'm absolutely convinced I'm right that Powell would not vote for every case that came before him, plus the other four judges, and force the reporters to testify. I'm absolutely clear on that. I'm right about that. The question is, what are the circumstances, and what are the rules? That's open for grabs. They would review that.

... There are 49 states as I understand it today that either have a statute or precedent decisions that give some kind of reporter's privilege.

Yeah, that is right. There are 49 states that have some protection for reporters. Of those states, 32 have what is known as shield laws. It's a law that says you are protected. The rest don't have any shield law, but they have effectively, I'd like to suggest, [agreed with] the arguments I made in that law review article. ... Those shield laws follow the language of my law review article, so I think that it's had quite an impact.

But recently, Judge [Richard] Posner in Chicago ... [has] written about [your interpretation of Branzburg], and he says you're dreaming.

Well, he's dreaming. I'm really angry at Judge Posner. (Laughs.)

Yeah, but the courts in the D.C. circuit agreed with him.

Well, what happened was that Judge Posner is a brilliant, brilliant judge. And here we are 30 years later; he has one of these what I call reporter's privilege cases, a case where a reporter doesn't want to testify. He looks at the law and says that the federal courts have been misinterpreting what I had done, or he's basically saying what I did was wrong. I personally don't think he spent enough time thinking about it. But that sent a chill through this army. ...

Well, the other way to look at it is the court ruled five to four there is no privilege and Powell was just saying it'd be nice is Congress passed a law or somebody did something to protect repoters.

Yeah. Well, Powell was just blowing smoke.

Right. And you had taken the smoke and made it appear to be real.

Yeah. Right.

That's what [Posner's] saying. He called your bluff.

Yeah. Well, I don't think it's a bluff, with all due respect. ...

Well, he decided an opinion that goes just to the opposite of what you wrote about and what you were just saying was so influential. He in a sense told you you sweated too much in that room.

I sweated too much, and I'd wasted my time, and that in the area of the country where he is a judge -- which is Chicago, Indiana and Ohio, roughly speaking -- in those courts, reporters will not have the benefit of all these cases which all these lawyers spent so much time building up, and ... will not have the protection that they had before. Then what happened was that a judge in District of Columbia read his opinion and applied it in the famous [New York Times reporter] Judy Miller case. ...

What has happened over the last 15 years, as the country has become more conservative, the judiciary's become more conservative. ... I think it's a fair statement to say that as conservatives such as Judge Posner have come on the court, who probably favor government more than they favor the press just in personal terms, then when they get there and do that balancing process, I think part of their personal perspective on life comes into play, and they will balance toward authority ... instead of freedom.

So it doesn't look good in the future?

I tell you, the reporter's privilege will never die. There will always be a reporter's privilege, and that is because there are always going to be some judges who do not want to deal with a terrible situation of destroying a reporter's career, putting that reporter in jail or otherwise disabling a reporter. ... Last year, two lower-court judges had reporter's privilege cases. They picked up Posner's opinion, and they said: "Oh my goodness. We can't make that argument that always has been made by reporters for their privilege. Hmm." They came up with other ways to get the reporters off, right in Posner's own court. … The reporter is always going to win in the long run.

... Why do you believe the reporters are always going to win?

Well, I think ... that generally the public wants to have information. They don't want that information to be squelched. They do not want the CIA to keep secret the fact that it has illegal prisons in Europe and that they, the public, sees the importance of that. The judges -- who are, after all, a part of the public, aren't they? -- will sense the same thing they do. So in human terms, I think that reporters will get protection in the long run.

... That's why I'm optimistic. I think that there's a common sense [to] all this which all of us, whether we're sitting with black robes on or sitting where you are or sitting where I am, will recognize the importance of getting information out to the public.

... When you see reporters testify -- for instance, in [the Valerie Plame CIA leak] case, when you see reporters making deals with the special prosecutor, "I'm only going to testify so far -- "

Right. What do I think? Well, if I had a BB gun, I would like to shoot them. I think they're doing a great disservice to the press, all the reporters that are testifying.

You want them to go to jail?

Not under every circumstance. But ... we're talking about government against newspaper cases? ... I think that jail should be considered. I think we would have been much better off in the Judy Miller case had [NBC's] Tim Russert, had [Washington Post national security reporter] Walter Pincus, had [Time magazine reporter] Matt Cooper -- although Matt Cooper had a great fight -- and Judy [Miller] all four gone together off to jail. ... And Bob Woodward, symbolically. If all five of them had gone off to jail, that would have been very, very, very helpful to reporters.

Because you think civil disobedience by reporters will make a difference? You equate this with the civil rights movement, I guess?

I think that's right. You take this only so far, and not every case is the same as another. We know you've got a zillion forms of reporters being asked to testify. ... Don't go to jail if you saw a fire, you know? But you might argue, "Find out somebody else before you make me testify." ...

[Former Time Inc. editor] Norman Pearlstine turned over all of Matt Cooper's notes.

Disgraceful, absolutely disgraceful. I've talked about this with Norman. We have a civilized disagreement. I would say Norman Pearlstine is -- or was at the time he turned these over -- the editor in chief of the Time magazine division, which has a zillion titles. He is in a very difficult political position in real life because he has to go to his board of directors, who are not First Amendment-niks, ... and maybe not even media people who know a lot about media, and tell them that he's going to go in civil contempt. I think as a practical matter, that is very difficult for him. But from my point of view, it is very, very bad that he did what he did.

... Some prominent reporters, particularly in television, over the last 15 years have testified before federal grand juries.

I know of one. I was disappointed. I don't think they should have done it. ... I'm glad you said the last 15 years. One thing we haven't talked about is that I'm sitting here as the veteran of 30 years ago in the Caldwell case, and there's been a change in the attitudes of the press toward testifying and giving up sources. It's not as militant, in a nice way, as it was 30 years ago, and I'm not happy with that.

We've gotten soft?

Yes. The press has gotten soft. ... I think the press is under huge pressure with respect to the Internet and everything else, and as a consequence, it's more difficult to take on a huge fight like this for them -- in a real sense. ... When you have 6 million bloggers picking on a mainstream media, that is going to take some of mainstream media's energy to deal with that, OK? …

Even though many parts of the empire are declining, the proper strategy, in my view, would be to stand up and fight, because that will make you important forever and enable you to survive. Now, [that] may be a tough sell to the accountants that are looking at the readers who are going on the Net, so forth and so on. But honestly, I don't think you really want to have mainstream media that doesn't stand up and fight. ... Someone ... has got to stand up to the government. Someone has got to stand up for these institutions. And part of that process is fighting these subpoenas.

[Compare the Bush and Nixon attitudes towards the press.]

... I think that Bush is as anti-press as the Nixon administration [was]. The Bush administration, however, is a little bit more diplomatic about what it says about the press. But no doubt in my mind the Bush administration would be very happy if the liberal press were decimated. ...

It's very important to have a powerful mainstream media, ... because we know, among other things, the Bush administration believes in the powerful executive. They've said so. They've nominated Supreme Court justices who like that theory. We must have countervailing power. You can't have countervailing power if the press turns over everything it has to the power ... it's supposed to countervail.

... Once you can leak classified information and get away with it, and publish it, and damage the national security of the United States, where's the limit? ...

Well, who are [the FBI] to classify The New York Times as top secret? ... The problem is the classification system. Every damn thing in Washington is classified, including The New York Times as in the Pentagon Papers case. We cannot take the classified system and the classification on a document as a given, and the only way we have any control over classification is to have leaks. ...

The director of the CIA [Porter Goss] publicly said, "I want to see reporters in the well of a court," because he wants to know how leaks took place and who leaked classified secret information that he says damaged the national security of the United States.

Oh. (Laughs.) You break my heart with those words, because I believe that he wants to do it, but I don't think his point makes any sense at all. Let's just start with reality. ... The vice president of the United States said he had the ability to declassify information all by himself, and it's OK if [former Chief of Staff to Dick Cheney] Lewis Libby leaked classified information in the Judy Miller case. I mean, they want to have it both ways. They can use classified information any way they want to help them. But when there's classified information that's leaked that embarrasses them, then we have to have reporters go to jail and they get punished. ...

Now, you've said that the Bush administration wants to have it both ways. To quote you: "Indict those who receive classified information until it decides to declassify it for its own political purposes." Give me an example.

That example would be The Washington [Post] prison story. ... At the time that story was published, Sen. [Bill] Frist [R-Tenn.] and Congressman [Dennis] Hastert [R-Ill.] said that this violated national security, it gave comfort to our enemies, and asked that it be investigated.

All right, now what happens X months later? President Bush gets up, uses the same classified information that The Washington Post did, and says, "Hey, it happened, and I want you to know that as a consequence of it happening, in effect, we have prisoners in Guantanamo we want to take and try under ... a military court system." He went to Congress, made that announcement, and he traded the release of that information for new legislation. ...

I would like to say one other thing, if I may, about the amount of classification of documents in the United States. The Bush administration has classified 15 million documents last year. ... Now, multiply 15 times eight. ... Well, it's 120 ... million classified documents. Now, are we going to sit here and say the press can't publish any of 120 million documents, and they all imperil our national security? It's not true. ...

... There's another situation that [CIA Director Porter Goss is] concerned about. Dana Priest of The Washington Post published that the government of the United States has a relationship with other countries, particularly in Eastern Europe, and they maintain secret detention facilities where we keep what we call high-value detainees and that that revelation apparently damages our relationship with other countries.

And Dana Priest should have published that. That is a classic whistleblower case. ... It would seem to me that the CIA has done something that's beyond its charter, is totally illegal, and that the public is much better off knowing that that's happened. It makes no sense whatsoever to take Dana Priest and put her before the grand jury and effectively subject her to a jail sentence for publishing information that protects us all.

But they are conducting a leak investigation. ... As we understand it, people are lawyering up inside the government -- you know, officials who had knowledge of these programs -- and they're interrogating them. ...

Let's get a couple things clear now, because we've been spending a lot of time talking about the government and the press and the lack of a relationship between the two. I think the government should investigate those leaks [about secret CIA prisons], because the government ought to know what its employees are [doing]. If they're leaking, that's against governmental policy. The government has every right to investigate and punish by loss of employment those people who leak, because when you go to work for the government, that's part of your deal.

For years, by the way, generations, the government has investigated leaks. What's changed is that the government ... appears to be looking at the press as well as itself. I think it should look at itself. And it's right to rev up those investigations, wrong to put the press into that relationship.

We have the AIPAC [American Israel Public Affairs Committee] case and the application of the Espionage Act in the AIPAC case. Is that a bad precedent for the press? ...

... This case is very unique. It troubles me for many points. First of all, ... the Bush administration is trying to stop leaks in a way that has not been done before as far as I know. ... The Bush administration is taking the position that what we have now in this country, as far as they're concerned, is an Official Secrets Act, whereby they can penalize any leak of classified information. That has not been what has happened in this country for 50 years. We've had leaks of classified information forever and ever. There are reporters who live on leaked information, who could not survive without leaked information. Now what the Bush administration is saying is, "We're going to stop all leaks, and we're going to punish them under the Espionage Act." ...

Do you think the Espionage Act is constitutional?

The Espionage Act applies to espionage. ... Isn't it strange we've got an act called the Espionage Act? What does that mean? That means ... I gave you this classified document; you're working for the Nazis; that's espionage. That's what that act was written about. It was not written about publication.

In fact, when the act was brought up on the Congress floor, somebody said it ought to apply to publication. And Sen. [Henry Fountain] Ashurst [D-Ariz.] … said, "No, under the First Amendment, you can't have it." They took it out. It was never meant to apply to publication. It was never meant to apply, in my humble opinion, even to leaking. It applies to -- guess what? -- espionage. …

So this is the first time that this relic of a law, a 1917 law, had been used to apply to leakees -- namely, the lobbyists -- because they receive the information. If it can be applied to them as leakees, then the government has jumped over a hurdle, which people have always thought was there in the Espionage Act, to reach reporters as leakees. ... It's the Espionage Act, not the Leak Act. They've turned it into the Leak Act, for leakees. ...

Is there any precedent for this?

I don't believe there's any precedent for this. ... The law has been sitting there for 90 years, and no one wanted to use it really. But the Bush administration really wants to use this old relic. ...

Doesn't it make sense to protect our [classified intelligence] from people publishing information about it?

Every issue relating to national security, there is a "makes sense" argument from the government's point of view. But the "makes sense" argument has to be consistent with the First Amendment. ...

Has the [AIPAC case] been a victory for the Bush administration?

The Bush administration, in my humble view, has waged a war against the press, and using the Espionage Act is part of its program to wage that war. ... The attorney general, Mr. [Alberto] Gonzales, said in an interview with network television that he was looking at the Espionage Act to use it against The New York Times and, indeed, against other newspapers. ... When he says there are laws on the books, well people who know know there are not many laws there other than the Espionage Act. So, he effectively is saying the Espionage Act can be used. ... Therefore, to have a decision that helps him take that move is very useful. ...

We have never had an Official Secrets Act in this country. ... We don't have it because of the First Amendment. We also don't have it because Congress has never been able to pass it. The last time it was up for passage, President Clinton vetoed it, so I would like to assert that what the Bush administration is doing, knowing that they can't get the law through Congress, is going through the back door. ... They're taking an old act that's got loosey-goosey language, and they're ... getting the law passed in court.

[Prosecution using the Espionage Act is] the first step in creating total executive control over our activities, ... a unitary executive who has total control over the information. The reason that we've never had that in this country is because the only way we can be informed about international affairs, particularly where classification comes in, is if, frankly, there is leaking ... to reporters who understand what a leak is and how to put the information together. …

Let's take the example of Max Frankel. Max Frankel became the executive editor of The New York Times. He's a famous journalist. Before he became the editor of The New York Times, he was a foreign affairs reporter for The New York Times in Washington. Max Frankel put an affidavit -- that's a sworn statement -- in the Pentagon Papers case, which is an absolute, classic explanation of why classified information and the leaking of it is essential for the functioning of government. You cannot have an informed press without leaking classified information to them. You need the press sometimes to explain and express a governmental position, because if you do it yourself as a member of the government, you may not be believed. But in the context that a journalist can put to those very same statements, which are classified, the journalist becomes believable. It helps government policy to have leaks.

Now, try to explain what I've just said to the average man on the street, and they'll think you're a Communist and a traitor and everything else. Try to explain it to Max Frankel's lawyers in the Pentagon Papers case. They couldn't believe him, and he got so angry at them when he explained to them what I've just explained to you, he said, "I'm going home, and I'm going to write this explanation for you." ... [His lawyer] read it, and he was convinced. ...

Yes, but ... someone might say in response, it's the government's information. The government can declassify it; the government can leak it for its purposes when it thinks it will foster the national security of the United States.

... There are parts of classified information that shouldn't be leaked; that are deep, dark secrets of the government, all right? Then there's a level way below that which should never be classified in the first place. That information does not belong to the government; it belongs to the people. The government has no right to take information that we need to know so we can function as a public and say, "It's mine; it's ours."

... [What are your thoughts on] the NSA eavesdropping situation?

I think the NSA eavesdropping case is almost as good a case as the case where Dana Priest wrote about the prisons in Europe for the CIA. I say almost as good because when you look at the polls, 53 or 51 percent of the people seem to think it's OK to tap people with respect to their conversations in this country if they're talking to a terrorist. Now, if, say, half the people think it's OK and half don't, I don't think in human terms it's quite the slam dunk that you have with [secret prisons]. ...

But wait a second now. The New York Times published information about a closely held national security wiretapping program and subsequently, in a separate article, published information about how it was being done, through switches at the telephone company. And you're saying that's legal?

Well, let's look at it from government's point of view. They should make every effort to keep that information closely held; everyone concedes that. But because they can do that doesn't mean that you can't publish it.

You have to ask yourself: "What does that information do to the national security of the United States from a First Amendment point of view? Does it -- the publication -- create a clear and present danger to the United States?" If you think that's a clear yes -- which I don't -- then you're right. But there's nothing in the statute that talks about clear and present danger. There's just a lot of language saying you can't do this, you can't do that. There's no First Amendment within the statute. …

[The law] says, for example, that you cannot publish any classified information about communications intelligence. I'll bet you The Washington Post and The New York Times, the Chicago Tribune, the L.A. Times do that every other day. Any information about communications intelligence? It's a wide, sweeping act. ...

We don't have to protect all speech, and everyone would agree with that general analysis. But look at the government's argument here. They said that by publishing what The New York Times published, that terrorists were alerted that there was a phone program out there tracing their phone calls. You think that comes as a surprise to them? ... They're as smart as we are. I hate to say that. ... If they really wanted to have a secure communication, they would have encoded it. ...

But the president of the United States told [New York Times executive editor] Bill Keller, "You're going to have, for all intents and purposes, blood on your hands if there's another attack if you run this [NSA wiretapping] story." He's the commander in chief in the Constitution.

... Presidents have been telling the press that they would have blood on their hands for over 40 years. I can think back particularly to the Bay of Pigs invasion, in which President Kennedy told the publisher of The New York Times, effectively, "You will have blood on your hands if you publish this story." The New York Times published, substantially, all of that story. Kennedy went back to them after the fiasco and said, "I wish you published more."

This is a standard technique. It happens probably more to The Washington Post than The New York Times. You have to sit there and make a judgment as to whether the president really has a case or not, because otherwise, you won't be able to publish anything about national security stories. ...

... You've been called a number of things, but you've been called "the father of the reporter's privilege." True?

I'll accept that phrase as follows. I've spent probably 20 percent of the last 30 years encouraging, organizing, giving my point of view to other lawyers to help them fight the reporter's privilege case. ... I think what's going to happen at some point in time, if we're fortunate, is that the courts are going to say: "Well, we don't care about Branzburg anymore. For 30 years we've been protecting the press, and it's part of our common law. It's part of our culture. Therefore based on that, but not based on Branzburg, we will protect reporters." That's why I say there will always be protection for reporters, because I think it's an instinctive part of our culture to protect reporters in some respects. ...

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posted feb. 13, 2007

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