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The Pentagon Papers Case

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The Vietnam War began on November 1, 1955 and ended on April 30, 1975. John F. Kennedy, Lyndon B. Johnson, and Richard Nixon all served in the Presidency at different times throughout the war; however, the U.S. did not truly get involved until Johnson took office and leave until Nixon’s term. Both Johnson and Nixon tried to hide the truth about affairs in Vietnam by exaggerating and misleading citizens to believe the U.S. was making constant progress and going to win the war, so it should be no surprise that the release of the “History of U.S. Decision‐Making Process on Vietnam Policy” or the Pentagon Papers, destroyed Nixon’s and Johnson’s reputations while creating a distrust among the people for the U.S. government. The facts were not being told and Daniel Ellsberg a supporter turned opposer of the war recognised that the government was at fault. Believing the people deserved to know the truth, Ellsberg leaked the Pentagon Papers to many newspapers of one being the New York Times resulting in the Supreme Court case: New York Times Co. vs. the United States.

Robert McNamara served as Defense Secretary for both Kennedy and Johnson and was essential in the formation of the Pentagon Papers because he ordered it to be written due to his doubts on the outcome and continued American intervention in the Vietnam War. McNamara had started out a fervent supporter of the war coming up with statistical strategies to win the Vietnam War, but quickly began to see the U.S. had no chance of winning and sending more soldiers to Vietnam was purposeless.

The basis of the papers was “to determine how the United States had gotten into its current state of involvement in Vietnam” (Altschuler). While authors were not granted access to White House records, meetings, memoranda, or permitted interviews, they were allowed complete access to memos from the National Security staff, the files of the Office of the Secretary of Defense, State Department historical files, and materials from the Central Intelligence Agency (Altschuler). Fifteen copies of the study were made, and it was classified as “top secret” as it’s disclosure “could result in exceptionally grave damage to the Nation” (Altschuler) according to the executive order. One of the authors, Daniel Ellsberg is credited with releasing it to the public after having worked in Vietnam for two years and recognising the fight to be a lost cause that was wasting American lives.

He saw the fight stirring a web of deceitfulness among the members of the government trying to cover up America’s failure by misleading the media and citizens to believe progress was being made and a victory was around the corner. In fact, Johnson’s whole campaign had started out a lie and Ellsberg knew it. He promised “We still seek no wider war” while in reality Washington officials expected a wider war under Johnson because “he was determined not to accept failure of defeat in Vietnam” as he did not want to be “the President who saw Southeast Asia fall the way China went” (Ellsberg 48, 49). Johnson continued to lie to the public on the war in Vietnam, and so when it was leaked (not by Ellsberg) in the New York Times that Johnson had requested 206,000 troops, it only pushed Johnson further into secrecy and lying to hide from Congress his actions and keep from citizens his true intentions knowing the opposition it would cause (Ellsberg 203-204). Such deception and failure led to Nixon becoming the next President as Johnson decided not run again.

The first sixteen months of Nixon’s presidency barely mentioned the Vietnam War. Nixon’s plan was to get out of Vietnam after training the South Vietnamese how to fight and provide them with supplies to hold off the Northern Vietnamese. However, this method took much longer than expected and Ellsberg leaked the Pentagon Papers two years into Nixon’s term bringing the Vietnam war back to the center of the media’s and citizens attention. At first, Nixon was indifferent to the papers because the first portion published was about different administrations.

The Times had decided to publish the works as a nine-part series and took precautions like deleting time groups in order to protect national security (Altschuler). It was said that Kissinger, Nixon’s Secretary of State, changed Nixon’s mind by telling him he would be seen as weak if he did not retaliate against the papers publishing; as a result, “the Justice Department sought an injunction against the publication of any more of the Pentagon Papers” (Altschuler). The opposers to the publishing of the papers believed it was treasonous and a violation of the law. Nixon’s administration believed they could use prior restraint to prevent the future articles from being published despite the fact that prior restraint had rarely worked in the past being that the first Amendment would override it.

The First Amendment protects American citizens freedom of speech and the freedom of the press while prior restraint gives the government power to prevent material from being published or released that could be harmful to the security of the nation, so there is obvious conflicting arguments between the rights that each try to protect. This in turn meant that the Justice Department knew they had a very slim chance of winning any court cases to prevent the release of the Pentagon Papers, but still went through the whole ideal to try to protect the Nixon administration’s reputation from being ruined under the ruse that it was to protect the United States defense interests from irreparable injury.

On June 14, one day after the times had released the first series of the Pentagon Papers to the public, Nixon approved action for a lawsuit (Altschuler). Alexander Bickel, a law professor at Yale Law School was assisted by Floyd Abrams in defending the New York Times while the U.S. government was represented by U.S. Attorney Whitney North Seymour. Both the Times and U.S. government had disagreements with their legal teams on how to pursue the case. The Times wanted to argue that the First Amendment prohibited all prior restraints which Bickel convinced them reluctantly to hold back on because he knew the judges on the supreme court would respond negatively to such an absolutist position (Altschuler).

On the other hand, the United States government’s Assistant Attorney General Robert Mardian was reluctant to tell Seymour which documents posed a national security threat and provide witnesses reasoning that publication could be stopped for anything classified as top secret (Altschuler). Seymour knew this was a legally untenable position and was eventually able to convince Mardian to allow him to use some of the material but the damage had been done as Seymour had little time to prepare for the court (Altschuler). As a result of the court proceedings, U.S. District Court Judge Murray Gurfein issued a temporary restraining order on the Pentagon Papers to prevent them from further being publicated while the case was being heard in court; however, seizure of the papers was denied (Altschuler).

Ellsberg believed the entirety of the papers needed to be seen by the public and worried that he might not get another chance to release them if the court voted in favor of the U.S. government went around to other newspapers providing them with the Pentagon Papers. Those newspapers started their own series on the papers as well so not only the times by multiple other media outlets had access to the papers during the court proceedings. One of the newspapers who received the Pentagon Papers from Ellsberg was the Washington Post.

When it was discovered, Mardian sued the Post, but lost the case causing the government to appeal so as to get the verdict overturned and a temporary restraining order enacted (Altschuler). The Boston Globe was the next big newspaper to get the Pentagon Papers and start a series. The government in turn sued them as well. “The appellate court, by a 7–2 vote, upheld Gesell in an unsigned opinion, simply citing the heavy burden against prior restraint and the likely ineffectiveness of any injunctive remedy in light of the multiple publications by other newspapers” (Altschuler). The conflict between the decisions in the appeals for the New York Times, Washington Post, and the Boston Globe caused the case to make its way to the Supreme Court.

The Justices that presided over the case were Warren Burger, Harry Blackmun, John M. Harlan II, White, Black, Douglas, Brennan, Stewart, and Marshall. The U.S. government had planned to wait until the Supreme Court justices had returned for their October term to make their appeal. However, the New York TImes wanted an immediate appeal so, the case was scheduled to occur on a Saturday June 26 as the majority of the justices wanted the court appearance to happen sooner than later (Altschuler). They threatened to overturn the injunction if the U.S. government did not comply, but if they complied would keep the temporary restraining order until the hearing.

During the Supreme Court case the defendant were the Washington Post and the New York Times, and the plaintiff was the United States government. The U.S. government “claimed the president could sue based on his broad foreign affairs power to conduct diplomacy and responsibility as Commander in Chief to preserve military secrets” (Altschuler). “In his secret brief, Griswold presented a number of allegedly harmful items, including the four volumes on secret negotiations (which, as the Times mentioned in its first installment, Ellsberg had removed), references to still active intelligence agents, the disclosure of Southeast Asia Treaty Organization contingency plans, a 1967 intelligence estimate of Soviet reaction to the Vietnam War, and National Security Agency (NSA) successes in breaking codes” (Altschuler). However, the U.S. government had limited evidence of harm the release of the Papers would cause to the United States security giving the Post opportunity to suggest that the main reason the government was against the release of the papers was to maintain secrecy and prevent embarrassment. The Times and Post also argued the position of preserving the First Amendments and the separation of powers.

There was little time for everyone to prepare for the court case resulting in a no single majority opinion decision. The “six‐justice majority simply agreed on a brief per curiam opinion stating that the government had not met the “heavy burden” against prior restraints without providing any guidance about how that burden could be met” (Altschuler). This in turn ended the temporary restraining order and gave the newspapers permission to publish the Pentagon Papers.

Because the final verdict was made without a majority opinion but instead a “brief per curiam opinion” (Altschuler) each judge decided to make a separate opinion statement.

Judges Douglas and Black soley wrote their separate opinions from the absolutist position believing any injunction was an obvious violation of the First Amendment. “Douglas, too, believed that the First Amendment leaves no room for governmental restraints on the press” (Altschuler).

Brennan did not share an absolutist position but a position similar one as he believed prior restraint is legal but should only be used “during wartime when the government can prove that publication ‘must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea’ ” (Altschuler). Judge Marshall on the other hand believed the whole case was a matter of the separation of powers. Marshall argued “ ‘the issue is whether this Court or the Congress has the power to make law.’ Congress’s refusal to authorize prior restraints to protect national security prevented the judiciary from granting such injunctions” (Altschuler).

Judges Stewart and White did not believe that public harm that could be caused with the release of the Pentagon Papers was enough to meet the heavy burden against injunction (Altschuler). Also with the absence of specific and limiting legislation they believed the court did not have the power to prevent the publication of the Pentagon Papers. The dissenters Burger, Blackman, and Harlan all believed the court hearing was too short and too little time was devoted to such a significant case. They argued“ ‘the President is the sole organ of the nation in its external relations and its sole representative with foreign nations.’ If so, the judiciary’s review should be limited to determining whether the subject matter is within the president’s foreign relations power and whether the decision that publication would irreparably damage national security was made personally by the head of the appropriate cabinet department” (Altschuler).

I agree with the decision made by the Supreme Court that the injunction be lifted because the government did not prove without a doubt that irreparable harm would be caused to the nation and the defense of it if the Pentagon Papers were released. However, I do not believe the First Amendment will always override prior restraint. In this case, it just happened that the U.S. government was unwilling to cooperate with it’s attorneys giving them little time to prepare and few materials to work with that they were not able to prove the damage that the Papers could do to the country in court. I also agree slightly with the dissenters that the case was too rushed, but I mainly share the opinions of concurring Justices White and Stewart in that their was not enough specific legislation in place regarding injunction and the rights of the court relating to it for their to be a prevention of the publication of the Papers.

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