[James] Goodale, who was general counsel for the Times during the Pentagon Papers and the architect of the paper’s legal defense—and is a member of CPJ’s board of directors—was quick to relate the current scandal to the precedent-setting case. “Notice [Holder] didn’t tell you why it was the worst national security leak, he didn’t tell you what [the damage was]…The lesson from the Pentagon Papers is: Don’t trust the government when it claims national security” concerns, Goodale said. He came to this conclusion in the process of researching his book, for which he poured over formerly classified documents from the case. “I wanted to give the government the benefit of the doubt, but about three quarters of the way through I realized it was totally nonsense, they never had a damn thing,” Goodale said. Four decades later, he noted, no one has ever shown damage to U.S. national security caused by publication of the papers. Reporters today may do well to consider this point as they debate what, if any, actual harm was incurred by the AP article that revealed a secret CIA operation and foiled terrorist plot in Yemen and is at the heart of the subpoena fracas.
While Goodale could not have anticipated the timely revelation of the secret AP subpoena, he clearly did have one current issue in mind when he decided to write his account: the ongoing saga of WikiLeaks and its embattled and polemic founder, Julian Assange. While acknowledging that many traditional journalists find Assange to be a baffling character, Goodale said, “If you’re angry at Assange for publishing the information, you should be mad at The New York Times too. Assange is [reporter] Neil Sheehan and The New York Times” in the Pentagon Papers case, he added. “Assange is the publisher, so there shouldn’t be any question we are dealing with a First Amendment issue. If we don’t recognize that in the digital age, we are in a lot of trouble.”
Of course, there are notable differences between Assange and the Times, whose own partnership in publishing the first set of leaked documents eventually publicly broke down. Assange received widespread scorn from the journalism community for WikiLeaks’ later disclosure of thousands of classified, unredacted U.S. diplomatic cables that potentially put people’s lives at risk. (CPJ, for example, documented at least one Ethiopian journalist who was forced to flee his country after he was cited in one of the cables.) Nonetheless, Goodale noted that the measure of whether publication of leaked material meets journalistic quality and ethical standards does not affect whether it qualifies for First Amendment protection. In other words, while WikiLeaks may not have taken care to redact or contextualize the data as the Times did, professional failures “do not [constitute] a legal distinction for the First Amendment.” Moreover, Goodale emphasized, journalists must be aware that the precedent of prosecuting WikiLeaks, essentially criminalizing the newsgathering process, would put the whole profession at risk.
Goodale has received a lot of press in recent days for stating that Barack Obama is on a path to becoming “worse for press freedom than [former U.S. President Richard] Nixon.” That’s the kind of headline that would make any president shudder, and in a sign the White House crisis-control team is on full alert, Obama unexpectedly called this week for a renewed push to pass the long-dormant federal shield law that would enshrine the reporter’s privilege to protect confidential sources. While many in the room with Goodale Thursday welcomed the move as an added protection for the press—most notably Judith Miller, who famously went to jail to uphold that principle—the bill comes with several controversial elements, including a national security exemption and the need to legally define who is a journalist in order to be effective.
Whatever happens with the legislation, Obama’s announcement was characteristic of the schizophrenic nature of the administration’s record on whistleblowers and leaks. The low level of tolerance for leaked information under Obama, and post 9-11 more generally, led Miller to question whether Goodale could have won the Pentagon Papers case in the 21st century. (After doing a numbers analysis of the current makeup of the Supreme Court, Goodale’s response was an emphatic “Yes.”)
As pointed out by CPJ Executive Director Joel Simon, the shield law and leak cases highlight that the Pentagon Papers case settled the issue of prior restraint (which has become largely irrelevant and unenforceable in the Internet era), but the debate on classified documents is unresolved. Decades after Goodale first articulated to corporate media lawyers the feasibility and importance of the First Amendment as a legal defense, he and his book are a handy and relevant reference for a new generation of attorneys tasked with protecting the press.