In Schindler’s List, Steven Spielberg offered an account of selfless heroism manifested by the most ordinary of men—a man more pronounced in his vices than his virtues. Oskar Schindler risked everything he had in order to rescue, from the Holocaust, as many of the innocent as he could. It was a story that needed no embellishment.
In his recent film, The Post, Spielberg sets out to tell a story with the sense, again, that the plain facts should speak powerfully for themselves. But here, he has produced a fairy tale. He has offered the narrative that liberals wish to tell themselves, filtering out facts that tell a strikingly different moral lesson. The legend involves the brave owner and editors of the Washington Post. Katharine Graham put herself and the future of her newspaper at risk by doing what even she and her lawyers recognized as a violation of the law: publishing “classified” papers on the war in Vietnam. (The recent controversy over Hillary Clinton and her handling of classified material makes the story sharply relevant.) And what deepened the danger is that her editors were stirring the ire—and the legal resistance—of an administration headed by Richard Nixon.
But then, vindication: the Post could celebrate itself for chalking up a notable victory for the First Amendment, as the government went to court, trying to get an injunction to bar or delay the publication of the papers. When faced with such crises in the past, the government stayed out of court, lest it draw attention to the unwarranted release of secrets. (During World War II, the Chicago Tribune inadvertently published the names of Japanese ships involved in the Battle of Midway. President Franklin Roosevelt wanted to put Colonel Robert McCormick, the Tribune’s publisher, in jail for revealing that the U.S. had broken the Japanese code. But if the Japanese had not noticed the article, there was no point in broadcasting it through a public trial.) In the case of the Post, though, the classified documents were dribbling out day by day, drawing ever more attention—and making it clearer that the executive branch lacked control over some of its most sensitive papers on national security.
It’s no small irony that Nixon himself was not inclined to respond to the provocations of the New York Times, which took the lead in publishing the purloined papers. If the papers disclosed any wrongdoing, it concerned the record of Lyndon Johnson and Robert McNamara. Some of the documents could be read to suggest an intention to expand the war in Southeast Asia after LBJ won the election of 1964. And he did win it, in part by painting Barry Goldwater as the candidate ready to trigger a war. But it was Henry Kissinger who jolted Nixon from his studied indifference. According to H. R. Haldeman, Kissinger argued that Nixon did not quite grasp “how dangerous the release of the Pentagon Papers was. . . . [T]he fact that some idiot can publish all of the diplomatic secrets of this country on his own . . . could destroy our ability to conduct foreign policy. If other powers feel that we cannot control internal leaks, they will never agree to secret negotiations.” What Kissinger had in mind were the negotiations then in the works to make the breakthrough with China. Those negotiations were bound up, in turn, with attempts to deal with North Vietnam, steer into the agreements over Strategic Arms Limitation with the Soviet Union, and handle the delicate dance over Berlin.
And yet, apart from the weighing of these interests, the damage was already done by the fact that the matter was being taken into the hands of judges to decide. Justice John Harlan made the point tellingly when the matter reached the Supreme Court, in New York Times Co. v. United States: the fact that the executive had to go to court to restrain publication was itself a sign that the executive was not in control of its most critical papers on diplomacy and the movement of troops. The late journalist Claire Sterling, interviewing sources in the intelligence services in Europe, reported that this revelation was decisive: the French decided, after the Pentagon Papers, that they could no longer responsibly share with the Americans their most sensitive intelligence, bearing on the lives of their agents.
The Pentagon Papers broke in the New York Times on Sunday, June 13, 1971. The second installment appeared the next day, and when it was clear that the papers would be coming out in an extended series, the government went to court in New York. Judge Murray Gurfein in the district court granted a temporary restraining order, giving the government the chance to assert an interest in “discovery”—to see what documents the Times meant to reveal. But a funny thing happened while the Times was under the restraining order. As if responding to a choreographer, the Washington Post began publishing articles drawn from the same series, picking up where the Times had left off. This is how the Post entered the picture. The government then sought the same restraining order from Judge Gerhard Gesell in the district court of the D.C. Circuit.
In the courtroom, Judge Gesell heard from General Melvin Zais that the Pentagon Papers exposed two military operations involving the deployment of troops in Southeast Asia. The plans had been contemplated against the prospect of a Chinese intervention. In the meantime, the revelation of military plans in the press could induce skittishness in the governments of Japan, Thailand, and the Philippines, as they pondered their own possible contributions to the project of “Vietnamization,” shifting more of the burden of the war to the Vietnamese and other countries. The United States was using airbases in Thailand for American B-52s, planes necessary to the “cover” or protection of our troops in Vietnam. But the government of Thailand was not exactly exuberant in advertising, to its potential enemies in the region, its support for American forces.
Gesell would blithely dismiss the testimony offered by Zais and others, and he refused a restraining order. When the case reached the D.C. Circuit Court of Appeals, a majority sustained Gesell’s judgment. But Judge Malcolm Wilkey, in his dissenting opinion, was convinced that the documents, “if published, could clearly result in . . . the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiating with our enemies.”
Spielberg does not treat these arguments with any specificity; perhaps he did not take them seriously because of an assumption, running through the film, that the war had been wrong all along and could not be justified—that it had become a futile project, even under Johnson and McNamara. But by 1971, the war had not been lost, and, by 1973–74, it was arguable that the war had been won. General Creighton Abrams had succeeded in his strategy of bringing security to villages, and, as early as 1972, William Colby of the CIA was able to remark that “the pacification essentially eliminated the guerrilla problem in most of the country.” The war was not lost until Watergate sapped Richard Nixon’s strength. In 1975, a Democratic Congress refused even to resupply with ammunition the South Vietnamese forces fighting with conviction on their own. The destruction of civil and religious freedom for the people of Vietnam no longer seemed to count for the Left.
But then, what of the movie’s high-sounding claims of vindicating the First Amendment? At film’s end, the narrative suddenly looks ahead to Watergate, with Nixon in his familiar role of villain, as the Post had long been pleased to cast him. But what was the egregious wrong in Watergate? Agents of the Nixon administration had broken into the offices of the Democratic National Committee to steal private documents or papers of political strategy, not meant for public disclosure. But suppose that the burglars had secured those papers, instead of bungling the job. What if they had then decided to make political use of the documents by publishing them in the Chicago Tribune or the Manchester Union Leader? With the precedent of the Pentagon Papers decisions, it would have been impossible now to prevent the publication of those papers.
But then, almost 30 years later, an unsettling jolt finally kicked in: Gloria Bartnicki, a negotiator for the teachers’ union in Wyoming Valley, Pennsylvania, was recorded in a private conversation. She was speaking candidly, and with no feigned niceties, about the union’s strategy in upcoming negotiations. The recording was made available to a union opponent, who sent it to Frederick Vopper, the host of a radio talk show. And in the manner of the Pentagon Papers, Vopper went about playing the recording in segments, putting out more every day. Chief Justice William Rehnquist would later observe that the recordings were made in violation of federal and state law and that Bartnicki had every ground on which to expect that the privacy of her conversation had a claim to protection. But the Pentagon Papers had also been obtained in violation of the law, and Chief Justice Warren Burger had believed, then, that there could be no right to publish stolen papers. Yet that precedent was now in place. It fell, then, to Justice John Paul Stevens to explain that no matter the violation of the law, and no matter the violation of privacy, the Court could not issue an injunction restraining the broadcast of the recording. For now, at least they had, as a precedent, the holding in the Pentagon Papers.
What was trumpeted as a triumph for the First Amendment now ricocheted out to harm ordinary people. More curiously, the Supreme Court’s decision in New York Times Co. left unsatisfied the First Amendment’s most storied defender: Justice Hugo Black. Black had a near-absolutist view of the amendment, ready to deny almost any restriction on speech or publication. He was willing to deny flatly any government move to seek an injunction and bar publication of the papers. (Spielberg’s movie has my late friend Meg Greenfield reading Justice Black’s soaring words on the value of an unrestrained press. What it did not tell viewers is that Black’s judgment in the case was rejected even by most of the colleagues on his side.) Even Justice William Brennan acknowledged that a restraint in advance of publication could be warranted in the case of reports offering precise information on the movement, in wartime, of troops and ships. And lest anyone forget, the country did happen to be involved yet in a war in Vietnam. Yet Black was miffed, to put it mildly, “that some of my Brethren are apparently willing to hold that the publication of news may sometimes be enjoined.”
As the box score of the Court arranged itself then, three Republican appointees (Chief Justice Burger, along with Justices Harlan and Harry Blackmun) were willing to give the government time to examine the papers, just to gauge how much of the material was too sensitive to release. In the middle were the “swing judges”: they were prepared to clear the way for the publication of the papers, but they thought that the decision had to be open to an honest judgment as to how dangerous or risky those papers were.
Justice Potter Stewart, for one, took seriously the prospect of dangers arising from the publication. “I am convinced,” he wrote, “that the Executive is correct with respect to some of the documents involved.” But he finally fell in with the decision to withhold the injunction because, as he put it, “I cannot say that disclosure of any of [the papers] will surely result in direct, immediate, and irreparable damage to our Nation or its people.” It was never clear why the logic of the First Amendment required that the danger be immediate and direct; the mischief produced by the disclosure of secrets could take weeks or months before it erupted, in the form of bombings and the killing of agents. Yet strictly speaking, Justice Stewart, the Bertie Wooster of the American bench, had cast no judgment on the content of the papers. He reported merely on the state of his own sensations—“I cannot say,” he declared, that the papers were dangerous. And he could not say because, as he freely admitted, he did not have the competence to read the papers in a discerning way. In fact, he had not read them at all.
Judge George E. MacKinnon of the Washington, D.C. Appellate Court had noted earlier that the case “comes to us on a blind record in which the actual documents in the possession of the newspaper are not before us.” Judge Wilkey added in his complaint that the judges were confined to generalities because they had not been furnished with any of the “original documents.” Picking up on this string of complaints, Chief Justice Burger protested that “we literally do not know what we are acting on.” As he noted, “No District Judge knew all the facts [of the case]. No Court of Appeals judge knew all the facts. No member of this Court knows all the facts.” And why was that? It fell to Justice Byron White to say what should have stirred embarrassment for his colleagues sitting as a panel of jurists: That “material,” as White said, “remains sealed in court records and it is properly not discussed in today’s opinion.” As the chief justice noted, counsel on both sides “were frequently unable to respond to questions on factual points.” They pleaded the pressure of “working around the clock.” In other words, they had not read the papers.
A scene from Steven Spielberg’s Oscar-nominated The Post, which perpetuates the popular narrative of the case (TWENTIETH CENTURY FOX/PHOTOFEST)
Let’s stop to collect the strands: even the liberal judges would not affirm a categorical rule that would make it wrong in all conceivable cases to restrain publication in advance. For the swing judges, the decision would be contingent upon a reading of the papers and a judgment as to whether they contained material that could endanger military operations or diplomacy or the lives of American agents abroad. The reading of the papers was utterly necessary to reaching a judgment. But the papers were never read—and yet the judges reached a judgment anyway. In the annals of incoherence, the opinion in the Pentagon Papers case has to hold a preeminent place.
That incoherence has remained curiously unnoticed in 40-plus years of commentary on the case; and unnoticed in the same way have been the inconsistency and hypocrisy of the newspapers over the matter of seeking injunctions to block publication. That matter could be opened with the simple question of how the Washington Post managed to get into the center of this case, when it was the Times that had commissioned the work and began publishing it. When the case reached the Supreme Court, the question was put to counsel arguing for the Times: if the Court grants the injunction to stop publication, what if another newspaper picked up the baton, while the Times was under restraint, and started publishing? That’s how the Washington Post took up the mission of publishing the papers when the Times came under a temporary restraining order.
But if both newspapers in turn were restrained, reports on the Pentagon Papers had already begun to appear in several other publications, including the New York Post, the Philadelphia Inquirer, and the Miami Herald. The chief justice noted that, in the oral argument, counsel for the Times intimated that “the Times contemplated enjoining its use by any other publisher in violation of its copyright.” In other words, the Times would seek an injunction to bar the publication of documents in its possession—documents that these other journals had no claim of rights to publish. The Times would claim for itself, then, precisely what it had denied the government a right to do. Justice White thought that this response made eminent sense, for there was a concrete interest in the copyright. In this odd tangle of reasoning, the interests of a private corporation could justify “prior restraints” on publication, while the interests of the government, encompassing the safety of the nation and its military forces, could not.
Justice Oliver Wendell Holmes had famously declared: “Great cases, like hard cases, make bad law.” And on that point, there has been no clearer example than the Pentagon Papers case. The Court was so divided that no single opinion carried a majority of the judges, with a claim to be the official holding in the case. What the Court issued instead was a per curiam opinion, fitting on one page. The justices simply reported on what the liberal majority could agree on: that the injunction to restrain publication would not be granted. The decision offered no account of the reasons that could justify it. No law could spring from this case and no rationale that had the endorsement of a governing majority of the justices.
But as the line went, “print the legend”: the case has been treated as iconic, a landmark ruling, one that handed down a principle for the ages. And yet, only nine years later, in Frank Snepp v. U.S., the Court repudiated every strand of opinion that had been decisive for the swing judges in the Pentagon Papers, and especially for Justice White. For anyone looking closely, it was entirely plausible that the judgment in Snepp overruled both the decision in the Pentagon Papers case and the classic case on prior restraints, Near v. Minnesota (1931). For here was an explicit restraint in advance of publication: Frank Snepp had agreed, under his contract with the CIA, to get every manuscript of his cleared through review before publication. In his book Decent Interval, Snepp had written a moving volume on the last days of the war in Vietnam, as helicopters were lifting off the roof of the American embassy in Saigon. But he had not cleared the manuscript in advance. For that violation of the law, the earnings from his book would be confiscated, and he would be compelled to submit for review at the CIA everything that he would come to write in the years ahead.
In the Pentagon Papers case, Justice White had expressed his unwillingness to grant an injunction to restrain publication in advance. But in an unusual move, he made clear his willingness to sustain a prosecution of the Times under the Espionage Act—on the day that the Papers were published. Now, with White acquiescing and joining the opinion in the Snepp case, the Court offered a scathing rejection of the arguments that White himself had offered as the alternative to enjoining the publication of the Papers. White said nothing to acknowledge his critical shift in reasoning, which would have made a striking difference for the Pentagon Papers.
Once again, the Court was speaking per curiam, with no one justice speaking for the Court. But to bring down the Espionage Act against the Times was to subject writers and editors to prosecution—and all the damage and risk of a public trial. The Court put the problem precisely:
Proof of the tortious conduct necessary to sustain an award of punitive damages might force the Government to disclose some of the very confidences that Snepp promised to protect. The trial of such a suit, before a jury if the defendant so elects, would subject the CIA and its officials to probing discovery into the Agency’s highly confidential affairs. Rarely would the Government run this risk. In a letter introduced at Snepp’s trial, former CIA Director Colby noted the analogous problem in criminal cases. Existing law, he said, “requires the revelation in open court of confirming or additional information of such a nature that the potential damage to the national security preclude prosecution.”
The Court summed it up, then, in words that should have been enough for Justice White nine years earlier: “When the Government cannot secure its remedy without unacceptable risks, it has no remedy at all.”
And if there had been indeed some serious danger in the publication of those papers—if troops could be ambushed, American agents killed—what gain would have been had by prosecuting Katharine Graham of the Post and Arthur Hays Sulzberger, publisher of the Times? Would imprisoning or fining them have compensated families for the loss of lives? Would that have repaired the harms done to the national interest? When we cast the alternative in this way, we can see the matter in a different light: that the government’s move for an injunction was, in fact, the most measured and reasonable thing for the government to do in securing its interests, while doing the least damage to other persons and institutions. There would be no attempt to put a newspaper out of business with a knockout award for damages. Nor would there be a pall cast on the freedom of the press through an overhanging threat of putting publishers and editors in jail. There would be a move only to restrain or delay publication. And in the case of the Pentagon Papers, the aim might have been merely to restrain the publication long enough so that agents of the government could review the papers. As Chief Justice Burger noted, in dissent, the papers had been in the hands of the Times for months as the writers were poring through the documents and preparing the breakout of the story. But now, there seemed to be a new urgency about getting those papers published, an urgency that had not been felt when the Times was carefully working on its dramatic release of the papers. Whatever explained that urgency, it was not motivated by a concern to protect the military and diplomatic moves of the government or the lives of American agents abroad.
The shame here should have centered on Byron White, usually the most sedate and honorable of men. In its per curiam opinion in Snepp, with White silently adding his assent, the Court repudiated every argument critical to his judgment in refusing to grant to the government the injunction to halt, even for a moment, the release of the Pentagon Papers. The other point of shame is that the Court, in Snepp, essentially overruled every argument critical for the “swing judges” in the Pentagon Papers case as well—but instead of acknowledging their mistake in that now-iconic case, the judges chose to repair their earlier misjudgment by bringing the hammer of the law down on young Frank Snepp. It was far easier to do that than to risk the ire of liberal opinion by being notably illiberal in handling the lawlessness of the New York Times and the Washington Post. It was, at once, the arrogance and the moral emptiness of the liberal political class.
But is it anywhere taught in the schools of law that, in Snepp, the Supreme Court essentially repudiated its reasoning in the Pentagon Papers case? Has it been noticed that the reasoning in Snepp might even have overruled the decision in the classic case on “prior restraints,” Near v. Minnesota? For that matter, is it ever told in the law books—or the movies—that the Court, in the Pentagon Papers case, produced no law, but only a decision to withhold the injunction, though the judges could not even amass a majority to explain the reasons that would justify that judgment? Yet here we are: the Pentagon Papers case is celebrated as a landmark legal decision, and Steven Spielberg has now commemorated it on the big screen. The adage from the old movie is confirmed again: “When the legend becomes fact, print the legend.” For some, it is so much more inspiring than the truth.
Top Photo: Given the go-ahead by the Supreme Court, the New York Times resumed publication of secret government files, later known as the Pentagon Papers, on July 1, 1971. (JIM WELLS/AP PHOTO)