By Sarah Johnson
History is replete with instances of suppression of media and crucial details from the public.
Among such cases, the Pentagon Papers and the Afghan War Diary, are notable for bringing forth the important question as to where we draw the line for revelation of administrative information.
The Pentagon Papers case was a very crucial case concerning the first amendment. It concerned the US government’s attempt to prohibit the New York Times (NYT) and the Washington Post from publishing portions of a government study on the Vietnam war and their rights to publish the information. Although the decision was in favor of upholding the New York Times’ right to freedom of the press, one may wonder what today’s Supreme Court would decide, knowing the effects of such an information release.
Today, different opinions exist with the case of WikiLeaks. The analysis of the time period as well as the judges within the Supreme Court show the reasons for their actions.
The Pentagon Papers concerned the publication of a 47-volume 7,000 page classified document under the department of defense’s history of political-military involvement in Vietnam from 1945 to 1967. These papers included 4,000 actual documents and 3,000 worth analysis. Most of the papers were leaked to the New York Times. They were given to Neil Sheehan of the NYT in 1971 by a former state department official known as Daniel Ellsberg.
The New York Times then began to release these articles into the press. Almost immediately controversy and lawsuits by the United States government followed. The American government believed that the publication of the Pentagon Papers had irreversible effects. These effects included the prolonging of the Vietnam war itself and problems with negotiating the safe return of US prisoners held in Vietnam. This hindered the release of prisoners because Vietnam itself could get a hold of these classified documents.
However, the newspapers argued under the first amendment in the Bill of Rights, that they could release this information. This turned the case around to the rights of the newspapers to protect the first amendment and the duty of the executive branch to protect the nation and its people.
The Pentagon Papers asked if ‘a prior restraint’ on the press could be allowed under the protection of the first amendment. A prior restraint is allowing a restraint on the publication of information before it is published into the public.
The papers themselves had an impact on America. It revealed that the United States government expanded its role in the war by holding airstrikes and marine attacks. While Lyndon Johnson, the 36 President of the US, exclaimed otherwise, it built a sense of distrust among the Americans towards their government.
This hurt Nixon’s war effort immensely and protests against the war spiked. President Nixon witnessed an uproar as well prior to their release. Speaking to the head of the NSA, Nixon said, “People have got to be put to the torch for this sort of thing… lets get the son-of-a-bitch in jail.”
Outraged by the “treason”, Nixon tried to get the NYT to voluntarily cease the publication of the articles. But the publication refused and Nixon had to go to the courts. The same development occurred when the Washington Post published the papers as well. Subsequently, the Supreme Court combined both cases into one(New York Times V. United States).
Nixon’s reaction to the Pentagon Papers further encouraged the Americans not to trust him. Some even believe this was the reason for the loss of his administration and eventually the downfall of the Vietnam war.
The outcome of the case was decided by the Burger court. The Burger court consisted of nine men and the court decision itself was argued from June 26 1971 to June 30 1971. The Pentagon Papers case divided the Supreme Court giving a separate opinion from the nine judges, namely, Black, Douglas, Brennan, Stewart, White, Marshall, Burger, Harlan, and Blackmum.
Each one of these judges gave their opinion and reasons for their decision in their commentaries. The judges that voted for the right of the New York Times were Black, Douglas, Brennan, Stewart, White and Marshall. Others who voted against this were Burger, Harlan, and Blackmum.
However, all having different opinions, the concurring judges’ opinions could be classified under one idea separately. This idea was that the government “Carries a heavy burden of showing justification for the opposition of such a restraint” and that the government had failed to meet that burden.
Finally, the Supreme Court decided in favor of the New York Times. But both the Post and New York Times never published portions of the papers that the government claimed were the most sensitive.
Justice Brennan on the Burgers court within his commentary on his decision exclaimed, “I write separately in these cases only to emphasize what should be apparent: that our judgments in the present cases may not be taken to indicate the propriety, in the future, of issuing temporary stays and restraining orders to block the publication of material sought to be suppressed by the government.”
Brennan saw the future could change, that opinions of the current Supreme Court and the government could eventually overturn their decision.
This is prevalent in the case of WikiLeaks. Within the case of NY Times v USA , the Court’s decision also never specified when prior restraint on the press may be allowed. This brings about the controversy within WikiLeaks.
On July 25,2010 a document known as the “Afghan War Diary” containing more than 91,000 classified documents on the war in Afghanistan was made public through WikiLeaks. The Afghan war diary painted a bad picture of military gains in the Afghan territory, showing that the Taliban’s strength had increased despite the United States’ investment into the war. This, yet again, sowed the seeds of distrust with the government.
Secretary of Defense, Gates stated that the document could have, “potentially dramatic and dangerous consequences.” This leak also did not gain public support. Human rights organizations and press organizations believed that it was irresponsible to publish the documents.
In reaction, the United States pursued a trial against the WikiLeaks founder.
Both cases had brought about the idea of the Right of the people to know vs the Right of government to withhold information. The impact of the Ellsberg’s release inspired whistleblowers around the world. Currently, there are active journalists and “hacktivists” still seeking out truths and lies within the government.
When Ellsberg was asked about the similarities between the Pentagon Papers and the WikiLeaks article he stated, “The documents look very familiar to me. Different places and names, but they are describing a war that is as thoroughly stalemated as was the case forty years ago in Vietnam.
It shows similarities and begets the same question– whether the information should be made available to the public.”
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