David Rudenstine’s study of the Pentagon Papers case fits within this fine tradition. It provides an excellent way to teach students about the constitutional questions of executive power
THE DAY THE PRESSES STOPPED: A HISTORY OF THE PENTAGON PAPERS CASE by David Rudenstine. Berkeley, California: University of California Press. Pp. 416.
Reviewed by Susan Sterett, Department of Political Science, University of Denver.
A very fine research tradition in law and politics takes a leading Supreme Court case and tells its story, from the historical context out of which a case emerged to the perceptions of different actors involved to the trial and the final Supreme Court opinion. Studies such as these, including Richard Polenberg’s FIGHTING FAITHS, about free speech, Richard Kluger’s SIMPLE JUSTICE, concerning BROWN, Anthony Lewis’s GIDEON’S TRUMPET, concerning GIDEON V. WAINWRIGHT, and Marian Faux’s ROE V. WADE make accessible to a relatively wide reading public the compelling stories that are crucial to understanding meanings of Supreme Court cases.
Whether cases are relatively well-planned elements of political strategies or something closer to happenstance, books such as these bring out politics. Because they do so by telling stories, they are particularly useful books for teaching. While I would recommend this book for anyone interested in the case, I will discuss it as a teaching tool, given the audience for this book review. Such studies allow discussion of cases as contextualized and political beyond the particular ideologies of Supreme Court justices. For students accustomed to thinking too much about Supreme Court doctrine, or too embedded in the tradition of law as something wholly apart from history, this perspective comes as a revelation.
David Rudenstine’s study of the Pentagon Papers case fits within this fine tradition. It provides an excellent way to teach students about the constitutional questions of executive power, often very dry for students, in the context of gripping questions about freedom of the press. As part of telling this story, Rudenstine argues against the usual understanding of this case. Rudenstine argues that the Nixon Administration genuinely believed that publication would jeopardize national security (pp. 8-9).
To recap the story briefly: the government commissioned a study of the history of the United States’s involvement in Vietnam. Robert McNamara commissioned a large number of scholars from different institutions to do the study. He commissioned the study out of a concern that the war in Vietnam was not winnable and its history should be documented (pp. 17-21). When it was complete, the study, which came to be called the Pentagon Papers, was 47 volumes, four of which were a diplomatic history that could have been useful in negotiations and that were treated at the time as highly sensitive (p. 27). Daniel Ellsberg, who had been a cold war intellectual and supportive of the war, had become opposed to the war. He believed that the public needed more information about the war. If the public had that information, more people would come to see how wrong the war was. In March of 1971 Ellsberg gave the papers to Neil Sheehan, a reporter from the NEW YORK TIMES. In June the TIMES began publishing the papers. The Nixon administration sought to enjoin publication and pursued the case in very short order . The WASHINGTON POST also received the Papers and decided to publish excerpts; it took much less time to decide in part because it saw publication as a way of competing with the TIMES (pp. 128-136). An injunction against publication would seem to violate the old common law understanding of what was at the core of freedom of the press: that the government was not to restrain potentially harmful speech or publication beforehand. The government tried to stop both newspapers from publishing; in very short order the cases were heard by federal district courts, Courts of Appeal and then the Supreme Court. The Supreme Court finally held that the Nixon administration could not stop the papers from being published, but in doing so some justices acknowledged that the government had some inherent powers not stated in the Constitution, particularly with regard to national security.
The Pentagon Papers case has generally been understood to have been part of the Nixon administration’s obsession with secrecy and expansion of executive privilege. That the government would try to halt publication of political material challenged the heart of what is generally understood to be core first amendment doctrine. Political speech has long been considered the crucial part of what the first amendment protects; its expansion to pornography and commercial speech are part of the story of constitutional change. While it has been deeply contested what it means to say that Congress cannot make a law restricting freedom of the press, a prohibition on prior restraints has long seemed to be a taken for granted part of the protection of the press based on even the restrictive English common-law heritage. Furthermore, the Pentagon Papers, while an important synthesis of material, were dense and long, written in academic prose. They also were generally understood to be based on material that had been published at least as government documents. That the Nixon administration would try to suppress this material, then, seemed to be an outrageous and unjustified effort to expand executive power. The administration claimed national security as a reason to suppress the material; the explanation from paranoia would hold that that claim was one not even the administration believed.
David Rudenstine has conducted extensive interviews and read through trial transcripts to address this prevailing understanding of the case. This richly textured book provides analysis of litigation choices and how those shaped the outcome, the problems of the arguments made in the cases, how the choice of advocates might have shaped the case, and a consideration of how and why judges ruled as they did. His discussion of different actors’ approaches would invite classroom discussion of different interpretations of what freedom of the press means.
Rudenstine argues that, contrary to the prevailing wisdom, the administration very much believed that the Pentagon Papers posed a threat to national security. Furthermore, he argues that Nixon, a president who loathed the press, was initially unconcerned about the Pentagon Papers. He believed that as a history it addressed actions undertaken by the Kennedy and Johnson administrations and therefore could raise no problems for his administration. Let the Democrats worry about it. Rudenstine argues that Henry Kissinger persuaded the president that it was important to care about the Pentagon Papers and their publication. Kissinger played on Nixon’s dislike of the press. He also urged that it would jeopardize negotiations if countries who were intervening could not count on their interventions remaining unpublicized. Publicity of negotiating positions an aid would embarrass countries whose officials did not want to be seen to be taking sides. Kissinger convinced Nixon it was important to pursue an injunction against the press (pp. 66-77). Once convinced, Nixon pursued it wholeheartedly. The argument that the government truly believed that publication was dangerous for national security organizes Rudenstine’s discussion of the courtroom hearings.
The government worked on a very tight timetable, which Rudenstine argues limited their ability to make their case. For example, in the district court case against the TIMES, the government did not initially cite any specific material that would threaten security; nor did the judge ask the government to do so (pp. 105-107). That in turn shaped the Supreme Court decision: some of the justices held not that the executive could gain a restraining order if it was justified on the evidence, but that in national security the government had the power without the courts’ evaluating evidence (pp. 314-320). Attorney General John Mitchell asked the Solicitor General Erwin Griswold to argue in the Court of Appeals only hours before the case was scheduled to be heard. Griswold initially protested that he could not as he had never even seen the Pentagon Papers (p.243). Because of the requirements of the classification system, all the material was classified, even though some of the documents consisted of already published news stories or public documents (p.30). Such broad classification made making the national security argument somewhat more difficult. Once it became clear the POST was also publishing the papers, the government had to pursue that newspaper as well. The government therefore was running a lawsuit in New York and one in Washington, D.C.
Rudenstine argues that the Justice Department believed the danger posed to national security by publication, although Ellsberg had held back the four volumes of diplomatic history
(pp. 84,86,89,95) that had seemed most sensitive. Furthermore, he argues that the freedom of press issue raised little problem for the Justice Department because no one had ever believed the press could publish anything it wanted to (p.86). Robert Mardian, the assistant attorney general who dealt with internal security, believed both that the simple fact of classification and that the TIMES had received stolen property meant that there could be no right to publish (p.81). Rudenstine discusses the perspectives of other participants as well. The TIMES relied on Alexander Bickel to argue its case. Bickel, a prominent first amendment scholar, spent his intellectual lifetime arguing against judicial activism and in favor of "the passive virtues." as a result, he argued that the executive could not suppress the publication of the Pentagon Papers without an authorizing statute from Congress, although in the Supreme Court he backed away from arguing that with such a statute a prior restraint was necessarily justified (pp. 103-104; 293). As Rudenstine points out, this approach is not the most protective approach possible for the press. In laying out these considerations, Rudenstine makes the possibility of lively classroom discussion of what freedom of the press means.
Rudenstine provides a lucid explanation of the differences among the opinions of the justices once the case reaches the Supreme Court. He sketches how the particular decisions fit with the overall jurisprudence of the particular justice. He also draws together the complex decision, in which there was both a per curiam decision and nine separate opinions.
Rudenstine concludes with a measured discussion of the effect of the publication of the papers. He argues that there is no evidence that their publication harmed national security, though he points out that it could still have seemed to be threatening before publication (pp. 326-328) although he also argues that it is not clear publication accomplished what Ellsberg wanted either: hastening the end of the war (pp. 329-330). He argues that it did increase the scrutiny of particular government officials, such as Robert McNamara (p. 332).
When I have taught this case, I have found classes divided among those who believe that (to quote almost directly) publishing the papers was akin to giving the opposing team the game plan to those who take absolutist positions on free speech. Each group tends to believe that their perspective is a matter of opinion, each equally good. This book will cut across such disputes and allow a much richer and more informed discussion of executive power, freedom of the press, and the politics of legal decision making
Copyright 1997
