This article first appeared in the St. Louis Beacon, Dec. 7, 2010 - The verdict of history, at least within journalistic circles, is that the New York Times and other leading newspapers made the right decision in printing excerpts of the Pentagon Papers, the top secret history of the Vietnam War. The papers showed that the government had been lying about the war and their publication was a factor in continuing to turn public opinion against it.
But it is easy to forget that the situation was not that black and white in the spring of 1971 when the Times began publication. The Nixon administration's solicitor general, Erwin Griswold, filed a secret brief with the Supreme Court listing 11 drop-dead secrets contained in the papers. The government claimed that disclosure could endanger the lives of intelligence agents and prolong the war, with the resulting death of thousands more soldiers and many prisoners of war. (See below for list of the 11 secrets.)
Some of Griswold's claims are more alarming than the claims made about the WikiLeaks disclosures, and some are strikingly similar. For example, Griswold said of the Pentagon papers that the history contained derogatory comments that might be offensive to allies with troops in South Vietnam, such as South Korea, Thailand and Australia. U.S. officials have similarly worried that U.S. allies will be embarrassed by the WikiLeaks revelations.
The Supreme Court ruled that the government could not stop the newspapers from publishing the Pentagon Papers or any other national security secrets unless, in Justice Potter Stewart's words, there was proof that disclosure would "surely result in direct, immediate, and irreparable damage to our nation or its people."
Twenty years after the Pentagon Papers, Griswold wrote in the Washington Post that his warnings in the secret brief had proved baseless. "I have never seen any trace of a threat to the national security from the publication," he wrote.
So, with the patina of history, the publication of the Pentagon Papers seemed incontestably correct. The publication affected public opinion, disclosed government lying, was upheld by the Supreme Court and did no harm.
But we often forget that Justices Stewart and Byron White added into their Pentagon Papers' opinions that they "would have no difficulty in sustaining convictions" under the Espionage Act for publication of the papers. In other words, the government couldn't stop the presses, but it could throw the journalists in jail for running them.
The Nixon administration did not pursue that route and no journalist has ever been charged with violating the exceptionally broad language of the Espionage Act, passed in 1917 during fearful times during World War I. Daniel Ellsberg, an author and the leaker of the Pentagon Papers, was prosecuted under the Espionage Act, but a judge dismissed the case because of prosecutorial misconduct -- the break-in of Ellsberg's psychiatrist's office by a White House "plumbers" unit seeking to discredit Ellsberg.
One possible result of the WikiLeaks disclosure of 250,000 diplomatic cables could be the first Espionage Act prosecution of a person who classifies himself as a journalist, Julian Assange.
The Senate Intelligence Committee, with Sen. Christopher S. Bond, R-Mo., as vice chairman, called last week for the Justice Department to prosecute Assange, whose custody in Britain could eventually provide U.S. authorities with a way of bringing him into a U.S. court.
The disclosures could also lead to Congress updating the old law, making it more of a threat to the press.Sen. Joseph Lieberman, I-Ct., has introduced the Shield Act making it illegal to publish information "concerning the identity of a classified source or informant of an element of the intelligence community of the United States," or "concerning the human intelligence activities of the United States or any foreign government" if publication hurts U.S. interests.
Assange is a tempting prosecutorial target for both practical and legal reasons. Practically, it's easier to prosecute a colorful but disagreeable character like Assange than it is an editor from the New York Times. Legally, the Espionage Act has been interpreted to require prosecutors to prove that a person intended to harm the United States.
Floyd Abrams, the First Amendment lawyer who defended the Times during the Pentagon Papers, told NPR last week that because of Assange's comments about the United States, he had "gone a long way down the road of talking himself into a possible violation of the Espionage Act."
Mark Sableman, a media lawyer at Thompson Coburn, sees more differences than similarities between WikiLeaks and the Pentagon Papers. He wrote in an email: "I think most people think of WikiLeaks as more of a real threat than the Pentagon Papers. The Pentagon Papers was history and the WikiLeaks concern current developments. The Pentagon Papers was leaked by an American former government employee; WikiLeaks seems like a renegade offshore organization open to anyone, even people deliberately seeking to harm the U.S. At least through today's eyes, given Ellsberg's historical respectability, WikiLeaks seems dangerous, unpredictable, uncontrollable. That image will inevitably influence what happens."
The WikiLeaks case also raises "a new unique issue," wrote Sableman -- the cooperation of internet service providers with the government.
"Is it censorship by another name?" Sableman asked. "Or is it business' responsibility in tackling the anarchic lawlessness of the world wide web. Somewhat uncharacteristically, I am leaning to the second interpretation here."
Richard Dudman, a former St. Louis Post-Dispatch Washington bureau chief, is sympathetic to Assange's disclosures. Dudman was himself involved in obtaining the Pentagon Papers. When the Times began running the papers, Dudman tried to figure out who might be leaking them. With some advice from I.F. Stone, Dudman made some calls to sources. Soon he got an anonymous call suggesting he send a reporter to a pay telephone in Cambridge, Mass. Dudman sent the late Thomas Ottenad to the phone booth. From there Ottenad was directed to another phone and eventually to the back porch of a house where he found a stash of the papers, which he hurried to St. Louis where they were eventually published.
Dudman wrote in an email on Sunday, "I welcome the publication of the WikiLeak papers as a breath of fresh air that tells us a lot more about foreign relations and foreign affairs than do the official statements, with their caution, concealment and frequent hypocrisy."
The disclosure of the Pentagon Papers revealed U.S. government lies. The disclosure of the NSA warrantless wiretaps and the CIA black prisons in 2005 disclosed possible government illegality. Those justifications for publishing national security secrets are largely absent from the WikiLeaks disclosures, which involved the publication of far more documents than the the Pentagon Papers. That raises the question of whether it is enough to say that the WikiLeaks disclosures are both fascinating and provide the American people with a lot more information about U.S. diplomacy than they had before.
Dudman says that is enough of a justification: "It makes no difference to me that the present leaks don't reveal wrongdoing as did the Pentagon Papers. Both were important in widening public knowledge and understanding of vitally important matters. In both cases, that is sufficient justification."
Leila Nadya Sadat, a professor in international law at Washington University agrees. "I personally agree that the value of the information and its publication way outweighs the government's interest in secrecy. I was appalled that the major reaction to the Iraq casualties WikiLeaks wasn't distress at the number of deaths but outrage that the information was published. What does that say about our priorities?"
William A. Babcock, a journalism ethics expert at Southern Illinois University Carbondale and editor of the Gateway Journalism Review, sets a higher bar. He wrote in an email: "While the Pentagon Papers case focused on the historical conduct of the Vietnam War, the recent case focuses on an on-going conflict. As such, there is a much higher ethical bar to be cleared before publication, especially when publication might place current individuals in harm's way. Instituting an 'information dump' of ongoing information of a sensitive nature without thoroughly vetting the content so that any named individuals are unlikely to be targeted by terrorists -- this constitutes to me reprehensible, unethical behavior on the part of any medium, be it electronic, print, or whatever. The key is determining whether or not this happened in the current Assange case."
11 Secrets in Pentagon Papers
1. Diplomatic attempts to end the war through negotiations with the North Vietnamese, disclosure of which could derail negotiations and delay peace.
2. Comments offensive to U.S. allies in the war, particularly South Korea, Thailand, and Australia.
3. The names and activities of CIA agents "still active in Southeast Asia" as well as references to the activities of the National Security Agency.
4. Contingency plans of the Southeast Asia Treaty Organization (SEATO).
5. U.S. estimates on how the Soviet Union would react to the Vietnam War.
6. The judgment of a U.S. intelligence board on the Soviet capability to supply weapons to the North, the disclosure of which could lead to "serious consequences."
7. The U.S. consideration of a nuclear response against China if the Chinese attacked Thailand.
8. A 1968 cable to Washington by then-ambassador Llewellyn C. Thompson making predictions on a likely Soviet response to mining Haiphong harbor or possibly invading North Vietnam, Laos or Cambodia.
9. Discussions of possible South Vietnamese military action in Laos.
10. The successes that the United States had in communications intelligence, revealing U.S. capabilities to the enemy.
11. Confidential diplomatic communications that would endanger the lives of prisoners of war. "The longer prisoners are held, the more will die," the government said.
William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.