MB Civic

By Thomas D. Herman  |  June 30, 2006  |  The Boston Globe

PRESIDENT BUSH’S attack on The New York Times for publishing privileged information about the government’s domestic spying programs revives a question answered by the US Supreme Court in a landmark case decided 35 years ago today: When is it legal for a news organization, in effect, to declassify top-secret government information concerning an ongoing war?

In June 1971, the Times, The Washington Post, and The Boston Globe published excerpts from a secret history of the Vietnam War known as the Pentagon Papers, information that at the time was classified as top secret.

The Nixon administration charged then, as the Bush administration charges today, that publication would endanger America’s national security. It sought, for the first time in the nation’s history, to prevent publication of a newspaper article before it was printed.

The case was heard by US District Judge Murray Gurfein, who was appointed by President Nixon and was in just his second day on the bench. The case was quickly appealed to the Supreme Court, which ruled that the Nixon administration could not prove that publication posed a security threat or endangered the life of a single soldier. Some of the “top-secret” documents were already public, and some were classified secret merely to hide politically embarrassing information. The newspapers, the court ruled, could publish the papers.

That result was far from certain before publication. The Times’s law firm had warned its nervous young publisher, Arthur “Punch” Sulzberger, that if he went ahead with publication he would violate the Espionage Act and be sent to jail, and the firm refused to represent the newspaper on the case. Sulzberger, the Post’s Katharine Graham, and the Globe’s William Davis Taylor — these were establishment characters, not left-wing or right-wing zealots — had been given evidence that the Kennedy and Johnson administrations had misled the public about how America became involved in Vietnam. Their editors analyzed whether this information could put the nation’s security at risk, and withheld some that they felt might do so.

In the end, they believed it was more important for the public to know the evidence and make its own judgments, threat of jail be damned, than to let the president arbitrarily reserve to himself the decision of what the public should know. And the highest court in the land agreed.

The newspapers had the courage to stand up to the pressure brought by the government, and by some of their lawyers, to do the job of the press in a free society: hold the government accountable; keep the public informed on the most serious issues affecting their lives; and do it responsibly. Today, at a time of national tension perhaps as charged as during the Vietnam War, many believe we are faced with a new threat — from government run amok, spying on millions of citizens without warrants in the name of national security — and pressure on the public’s right to know about this threat.

Journalists don’t have the right to publish whatever they get their hands on, and legitimate claims of national security risk should be respected by publishers.

Before it first published its story on domestic spying last December, the Times concluded, “It would not expose any intelligence-gathering methods or capabilities that are not already on the public record.” Indeed, it briefed the White House about what it planned to print — and, unlike in 1971, the government took no legal action to stop publication.

The Bush administration’s charge that the Times stories might tip off terrorists on the methods that the government is using to track them is questionable. It seems naive to suggest that Osama bin Laden’s operatives didn’t consider the prospect that their phone calls or e-mails might be tapped or traced. This is nothing new: Attorney General Alberto Gonzales said that, “for as long as electronic communications have existed, the United States has conducted surveillance of [enemy] communications.” Massive, unwarranted spying on Americans, however, is new.

The media is far from perfect. It has much to answer for in its coverage of the war on terror, particularly the run-up to the Iraq invasion. But will muzzling it enhance our national security?

Judge Gurfein, that Nixon appointee, put it best in his Pentagon Papers opinion: “A cantankerous press, an obstinate press, a ubiquitous press, must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know.”

Thomas D. Herman, a lawyer at Smith & Duggan in Boston, is producing a documentary film about journalism and the Vietnam War.