- Ben Bradlee
Former editor, The Washington Post
- Mark Feldstein
Professor, The George Washington University
- James Goodale
First Amendment attorney
- Scott Johnson
Blogger, Power Line
When the Pentagon Papers showed up, The New York Times has already published and had been enjoined, right? Why did you decide to publish it? Weren't you violating national security?
The prosecutor eventually said there was not a single matter involving national security in the Pentagon Papers. It took him 16 years to say it, but he said it.
And why did we publish it? The story that we ran did not violate national security. When we got possession of the Pentagon Papers, we never ran anything that was involved national security, and Richard Helms, former head of the CIA, testified to that. There were two CIA agents in Saigon identified in the Pentagon Papers by name, and when we noticed that, everybody said, "Well, God, we're not going to name CIA agents." So we said, "No," and took that out. I went around to Helms, looking for brownie points, and I told him that we'd kept it out. He said, "That's very nice of you, but we took those guys out of Saigon the day the investigation started." ...
Why did the Nixon administration want to stop the Pentagon Papers? What was at stake?
Well, that's an interesting question, because the Pentagon Papers were largely historical documents not about Nixon's administration, but about previous Democratic administrations -- the Johnson and Kennedy administrations -- and how they got into Vietnam.
Initially Nixon was not terribly perturbed by it. He thought, this hurts the Democrats; it doesn't hurt us. But Henry Kissinger, Nixon's national security adviser, convinced Nixon that the Pentagon Papers threatened a dangerous precedent for the Nixon White House; that Nixon's secrets, just as much as Johnson's or Kennedy's, could be revealed if this were allowed to go unchallenged. Kissinger always had a strong effect on Nixon. He reinforced Nixon's worst paranoia. Kissinger got Nixon so revved up that Nixon decided to go to court and stick his own neck out on the line to suppress these papers.
The press won in the Pentagon Papers case, in the sense of no prior restraint; they could publish. The courts said you could still prosecute them for espionage.
That's exactly right. The Pentagon Papers [case] was heralded as an enormous journalistic victory and political victory for the news media. And it was. But as a legal matter, it opened the door for future prior restraint. What the Court said was, in this case, national security wasn't jeopardized enough to censor the newspapers, but in other cases, in the future, we may well find that there is a good reason to censor the press. So legally this was much less of a victory for the press than it was politically and journalistically. ...
By leaving the door open in this Pentagon Papers case, it opened the door for the Bush administration to come after the press for espionage or for other purposes. The Pentagon Papers proved not to be this unheralded victory for the press, but a way in for an administration that wanted to go after the press.
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.
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. ...
... 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. ...
Do you think it was wrong for the Post and the Times to publish the Pentagon Papers?
The Nixon administration sought an injunction against the publication of those papers without putting in any evidence of the damage that would be done to national security by their publication. And given the fact that there was no such evidence offered in support of the request that the newspapers be enjoined from publishing those papers, I think the Court did the right thing and just decided this case correctly.
It's interesting in retrospect, when you go back and read that case, that they seem to suggest, the justices do, that if the government could make a case that the national security was endangered by the publication of that story that it might under some circumstances be appropriate for the publication of a story to be enjoined, but that the government hadn't come close in that case. And I agree with that. ...