Fighting for the Press

GUEST: James C. Goodale, Esq.
AIR DATE: 10/12/2013
VTR: 07/17/13

I’m Richard Heffner, your host on The Open Mind. And I’m joined today by attorney James C. Goodale, the New York Times’ young Chief Counsel in 1971 when in the face of determined Presidential opposition and prosecution, the Times bravely published what in the annals of a free press will always be remembered as the “Pentagon Papers” case, a series of leaked Defense Department documents marked “top secret” that exposed the American government to charges of egregiously misleading our people about the coming and the conduct of the Vietnam War.

  Now my guest has written a CUNY Journalism Press volume titled Fighting For The Press, The Inside Story of The Pentagon Papers…And Other Battles. 

  Pulitzer Prize-winning investigative journalist Seymour Hersh calls this eminently gripping and readable volume …quote … “The most detailed and honest inside account yet of the successful judicial fight to publish the Pentagon Papers by the uncompromising lawyer in the middle of it.”

  He adds, “This history could not come at a more important time”.  And I could not agree more…on both points. 

  For when you read Fighting For The Press…and I hope you do…you’ll think hard about the long past quote attributed to Richard Nixon: “…Subpoena all these bastards and bring the case…destroy the Times”. 

  But your thoughts may also range closer to the present, to Private First Class Bradley Manning, to Julian Assange and Wikileaks, to Reporter James Risen, to Attorney General Eric Holder and the Associated Press…even to Barack Obama, who my guest says “Has seamlessly carried forward the main ingredients of Bush’s [and I guess he would add Nixon’s and other Presidents’] war against the press.”

  Of course, it’s mid-July, 2013 as we tape this program…not when you see it … and who knows what will have gone on in battling for and against the free press between now and then. 

But let’s do go back a bit, and first let me ask my guest why his very last sentence to this splendid book about the Pentagon Papers case reads … quote…: “It indeed is a case for the ages.” Why is it?

GOODALE: Thank you very much for that introduction and the answer to the question is this … you know, there comes a time in the course of history when one wants to stop the clock and look at the history of a particular event. And that’s what I wanted to do with this case.

I wanted to stop the clock, see if I could place it in history with respect to other cases, events that we’ve had and then make a judgment.

So, the judgment I had is the one you’ve just said. But why say it with such particular clarity and conclusiveness at the end of the book you may ask … because previous books have questioned whether this case had “legs”, whether it would last as a clarion call to freedom of the speech.

Previous scholars have asked whether, in fact, Nixon had a pretty good case against The Times … or wasn’t The Times lucky. So what I wanted to tell the reader at the end was … this is a very unique case because of the fact pattern.

But it is also a very important victory for the First Amendment and that when you look at the case there is no other way to reach any other decision than the one I’ve just said, although there have been earlier detractors. So I think the time has now come … what … forty plus years … to ask oneself, “Hey, does it stand up there with Dred Scott, does it stand up with other cases that we have as part of our history?

Maybe a little early for me to say so, but I think so and I wanted to emphasis that point.

HEFFNER: Yes, but you know, I thought … as I read the book and as I hear you now and I know this is your point of view … I thought of Roe v. Wade … I thought of some of the great civil rights decisions, and I get nervous.

I get nervous about both the, the length of time in which we will continue to say the Pentagon “did it” for a free, free press. As there are many people who think that Roe v. Wade may not stand. Wasn’t it just a matter of the judges you had to argue before at that time?

GOODALE: I think that there is no question … we had a very good court. We had those who loved the press … Hugo Black, William Douglas, Potter Stewart. We had a lot of those who loved us.

I think it is true with respect to every kind of case that gained notoriety in the Supreme Court … one has a question of whether it will last forever? Will Roe v. Wade last forever …is your question.

I would argue that the facts in this case are so particular, so peculiar, so adventurous and so novel that the facts give the case some “staying power”.

HEFFNER: Is that good or bad?

GOODALE: I think it’s good. I think for historical purposes, it’s good. This case was the first case in the history of the United States that asked the Supreme Court to censor the press.

So that is a unique proposition and the court comes back, quite strongly saying, “You can’t censor the press”. Now I think it’s a little bit different than Roe v. Wade where some of the concepts with respect to a, a life and so forth and so on … abortion (cough) … some of those concepts came up … should I say … late in the case and they were judge-made in some respects.

But here it’s pretty simple. Can’t censor the press and we know, as we look back in the history of mankind that governments have always wanted to do that.

So that unique fact makes the case special and I do not think the case, for that reason … because it involves a central position of our existence … will ever be overruled.

HEFFNER: And today when we looked at a private and we look at a publisher what do you think about Assange and Manney?

GOODALE: Well, I think that one of the things you do when you write a history is to try to say there’s a lesson from writing a history.

I mean why do we … I mean history’s fun, but it’s there so people can learn from it and hopefully, not repeat what has happened in the past.

And this history is a message … a call to Obama to wake up a, a little bit because we have a situation going now that’s driven by technology that involves, as you say, Julian Assange … one who’s published tons of leaks and I want to say to those who read it, particularly the President … you know, it looks different, but it’s not different.

Please don’t get in there and try to do to Julian Assange what you, in fact, tried to do to The Times and failed to do.

Now I want to make this one important distinction … we’re not talking about Julian Assange with respect to censorship of Julian Assange … he’s already done it … we can’t say no to him …

HEFFNER: It’s done.

GOODALE: … so what we’re talking about is what happens afterwards? This is a new set of facts. I think that the principles of the Pentagon Papers case apply … and I say to Assan … I say to (laugh) the President … you know, not quite the same as the Pentagon Papers … but enough similarity, so please be careful what you do with respect to how you treat him.

HEFFNER: How are we going to deal with … in your book … the extraordinary adept story … that extraordinarily written story of the people on your side who didn’t agree with you.

GOODALE: Well, I think that’s a commentary a little bit on American culture.

HEFFNER: What do you mean?

GOODALE: Well, what I mean by that is that we have a, a … well I’ll not try to be too generalistic about this … but The New York Times is a business … and people who deal with the institution of, of businesses have certain attitudes toward what they want those in the situations to do. And they are focused on the economic part of that institution …

HEFFNER: You mean the consequences of thumbing your nose at the President.

GOODALE: Yeah. What, what’s going to happen if we publish and we get … our whole business gets screwed up … it’s appropriate, appropriate to think about that, but … an important message is here … look America has go to think about the creative process and I’m going to tell a story that makes people focus on that. And those to whom I’ve just referred … who have economic interests are not necessarily focusing on the creative process.

And I think the tale I tell of them, which is sympathetic in a sense because they’re my friends, is, is a sad tale because they didn’t understand “publish or be damned”.

In other words focus on the intellectual process that you are responsible, primarily, even though you’re going to get all the … everyone’s going to be mad as hell at you for what you’re, what you’re doing … and I think that their attitude, which is different than mine … explains how they came out on the wrong side of this. They didn’t have their eye on the ball.

HEFFNER: You think it was simply an economic issue. Weren’t there those, among your lawyers, who felt indeed your case was not a strong case?

GOODALE: Well, you know, the way the world works is that lawyers represent their clients and if their clients are big businesses they begin to think like their clients.’’

So, it doesn’t really help to have someone who’s a very good lawyer, who nonetheless hasn’t thought beyond the box in which he practices his law.

What I’m talking about is all we need in every endeavor, particularly publishing … you need men and women with a broad cultured view that sees society as a whole and that, if you turn to people who have … for whatever reason … only seen the smaller part of American life, they’re, they’re going to come out the way some of the lawyers did in this case … came out the wrong way and some of the executive did … they came out the wrong way … they’re narrow minded.

HEFFNER: Yeah, but, you talk about seeing the larger picture …

GOODALE: Right.

HEFFNER: May I not argue fairly validly with you that the larger picture was, and must always be … the national interest … the general interest … the general welfare, rather than one Amendment in a Bill of Rights?

GOODALE: I, I think you could argue quite well as you just did … that the larger …

HEFFNER: And your response would be … what?

GOODALE: (Laugh) This is the larger picture is, is exactly that. I think that the larger picture means that society is better off if it’s well informed about what its government does. And if one takes a narrow view with respect to how that’s approached, it’s not going to be good for all of us. Or any of us.

HEFFNER: What do you mean any of us?

GOODALE: Well, there’d be me … and you … who have particular … might have particular interest … you’re an academic … I’m a sometime academic. I have an interest in academic activities … I wish to protect the intellectual process, which is what this is … this book is about …

That might not apply to everybody else, but when … if they were to stop and think about it … they would understand the whole of our existence covers not only what they’re doing, but what you and I are doing.

HEFFNER: Does that make you a free speech, First Amendment absolutist?

GOODALE: No. I’m not a free speech …

HEFFNER: You’re not?

GOODALE: I’m not a free speech absolutist which means that there are no bars on what can be put on the speech that people use and that there are limitations. I mean I think you philosophically have to say what you view about freedom … generally … you think there are no limits on freedom? I happen to think there are limits on freedom.

Without some limits on freedom you have, you have chaos … taking that as a general principal, applying it to the press there are some times when the press should be punished and there are those instances when it can’t just off and say anything it wants. And the whole issue with respect to dealing with the Pentagon Papers case and cases of that sort is to see if you can articulate what that exception should be to an otherwise total free speech.

HEFFNER: Where would you draw the line?

GOODALE: Well, I always drew the line … before the Pentagon Papers case at, at the atom bomb. You may say why the atom bomb? Well, I grew up during the World War II …

HEFFNER: That’s why I realized (laugh) as I read it … because we’re not quite contemporaries … I’m a lot older than you … but … I know what you mean.

GOODALE: Well, during, during the Second World War … the one thing that you worried about and afterwards, too … would the other side get the atom bomb? The atom bomb ended the Second World War, but it did go for a … a practical matter … but it did go on for a little bit thereafter.

And it would have been outrageous if some one had given the opposition the, the atomic bomb. So I always said to myself … as I went through this process … if there’s anything in the Pentagon Papers that rises to the level of the disclosure of how to make an atomic bomb, that’s, that’s off limits.

So I have always used that as an example of where I would draw the line and then you try to think of things on either side that might come close to it.

HEFFNER: Do you think … going back to World War II … the business of the publication of the news that we had cracked Japanese code … would that in your mind have fit into “that’s not permitted?”.

GOODALE: Yes. But, of course, we didn’t do that …

HEFFNER: No, we didn’t …

GOODALE: We, we can do another program (laugh) … it’s one of my favorite … it’s, it’s a wonderful story where the Chicago Tribune published the attack … Japanese attack in the South Pacific … word for word following a, a cracked code communiqué … but the Chicago Tribune didn’t know that they had done that. And when they … the government came in to prosecute … as, indeed, it should have … it couldn’t, because the jury couldn’t figure out what, what the Tribune had done, done wrong. But it’s a good hypothetical.

HEFFNER: Forgive me, I do think it’s a good hypothetical because we’re talking now about the larger question of drawing a line, being an absolutist …

GOODALE: Right.

HEFFNER: Or not being an absolutist and I’m confused and, as clear as your book is, and it is … and I think I’ve learned so much from it … kept wondering, “Okay, where is he going to be, where is he going to come down on some other case, when prior publication or prior injunction before publication … that issue is raised again. You don’t think you could ever be convinced …

GOODALE: Oh, I can be convinced …

HEFFNER: No, no, no. I mean that, that a President has concluded that it is in the public interest …

GOODALE: To stop publication …

HEFFNER: To stop publication.

GOODALE: … I can be convinced … yes. I think that if he … the President or she, the President … were to conclude there, there was an event that would immediately and directly create chaos for our society as a whole … such as someone else using the atomic bomb … or, you know, taking the Japanese code and then breaking it, so that we couldn’t win the war … I don’t have any problem with those, those, those situations.

HEFFNER: But I gather you would have a problem with a President … Nixon or Obama … coming to a … the conclusion that generally speaking this … that has been published or is threatened to be published … is contrary to our national interest.

In other words, you would say … you would say “No”, the President would say “Yes”, if the answer is No.

GOODALE: Yes. I think the, the reason that I would answer the question as you suggested is that when you read my book, or indeed when you look at much of which is published about national security and look at it carefully, it rarely, if ever, reaches the level which I’ve just described as something horrendous.

The material that’s in my book that was published … that thought to damage the national security … turns out, in my view to be so much baloney. And I will tell you that as I look at subsequent examples that come up in our national experience … as they do … and they’re coming up today … and you look at them carefully … frequently, if not usually, they don’t, in fact, damage national security.

HEFFNER: So they fit into the same “baloney” category as …

GOODALE: Yes.

HEFFNER: … did the publication of the Pentagon Papers.

GOODALE: That, that would be my theory … yes.

HEFFNER: Then what makes it a case “for the ages”?

GOODALE: Well …

HEFFNER: It was, as you said yourself so particular, the details were so particular …

GOODALE: Right.

HEFFNER: … the nonsense of publishing … in the Pentagon Papers what the Times had already published and many other newspapers had published.

GOODALE: What makes it a case for the ages … is that the government claimed that there would be immense damage to national security. Pretty much as the government claims today that the leaks, let’s say from Wikileaks or from other leakers … we’ve had a lot of leakers … at the time we are taping this program … are claiming …the government made the same claims with respect to the Pentagon Papers.

They claimed, for example, that the publication of the Pentagon Papers would break the Vietnamese codes. I mean it’s a little bit like the Japanese code example. Except that when you took the time to see exactly what their claim consisted of … it didn’t turn out to be true. One didn’t have that time at the time this case took place, it was going so fast … that all you could do was react and what the historian has the opportunity to do is to take these claims, look at them in the light of history and, and make a, make a judgment. So it’s a, a case for the ages because the government, regardless of the claims that are made for national security, did not think they reached a level where they should be enjoined. And it’s a case for the ages when you take a look at it and you realize that a national security claim, as such, has to be looked at very carefully because what the case proves is they will not prove out probably.

HEFFNER: Well, it was so fascinating in reading Fighting For The Press to realize you, yourself, had been involved as an intelligence officer with what real codes were doing in real time and you knew that this wasn’t an issue there. Not as the historian, but as the attorney for The Times.

GOODALE: I, I did. And, and one, one has to depend a little bit on what the governments going to tell you so I can’t pick up anything and see whether they’re, whether there it goes or not. But when one listened to what the government said about codes, one had to sit there with the training one has and ask themselves whether, in fact, it was logical that they could make those kinds of allegations. And the logical always worked in my view in the favor of the press.

We were fortunate … the Times was … it had an intelligence officer, Murray Gurfein as the judge … as its judge who was able to make commonsense judgments based on his, his experience and, and, you know, deflate some of the claims.

HEFFNER: Max Frankel was here some months ago and I asked him to read from that wonderful affidavit that he filed in the Pentagon or that you filed for him in the Pentagon Papers. And it was really so revealing and he has really written what should be read by everybody in this, in this regard. Question … we come close to the end of our time today … what do you think the decision would be before the present Supreme Court if the same arguments were made with the same materials … the Pentagon Papers?
GOODALE: All right, remember the Pentagon Papers case is a censorship case and you need five votes to win. The present court is thought to have four Liberals, so you need one vote. I think Kennedy was very good on the First Amendment … would be your fifth vote. So you would win.

Now, if the case were for something that’s already been published, rather than … well, that might be different, but to answer your question … Kennedy is your man.

HEFFNER: But if it comes up in terms of what has been leaked and printed already …

GOODALE: You might get a different answer.

HEFFNER: You know this is such an important question, that I hope that you will come back again and discuss this further with me. You can’t write another great book like … Fighting For The Press … but I hope by that time all of our viewers will have read it. Thank you for joining me today.

GOODALE: Thank you very much for having me.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. Meanwhile, as an old friend used to say, “Good night and good luck.”

And do visit the Open Mind Website at thirteen.org/openmind to reprise this program online right now or to draw upon our Archive of 1,500 or so other Open Mind and related programs. That’s thirteen.org/openmind.