Pentagon Papers Legacy and WikiLeaks

Thursday, June 30, 2011

View of the Interpol 'wanted' page for WikiLeaks founder Julian Assange taken in Washington on December 3, 2010. (NICHOLAS KAMM/AFP/Getty)

Welcome to Politics Bites, where every afternoon at It's A Free Country, we bring you the unmissable quotes from the morning's political conversations on WNYC. Today on the Brian Lehrer Show, James Goodale, former vice chairman and general counsel of The New York Times and a lead lawyer in the Pentagon Papers case, discussed the WikiLeaks case on the 40th anniversary of the Supreme Court's Pentagon Papers decision.

James Goodale is using the 40th anniversary of the Pentagon Papers to warn about what he sees as President Obama trying to silence another news organization, in this case, WikiLeaks. The Obama administration is trying to charge Julian Assange and WikiLeaks with conspiracy to commit espionage—the same statute the Nixon administration tried to pin on the Times. In this pursuit, the Justice Department has issued subpoenas to an extended network of people in the so-called hacking community.

Obama: Not so transparent

Goodale contends that Obama is actually one of the worst Presidents we've had with respect to dealing with national security and press freedom.

The great vice in what the government is trying to do is that it's trying to criminalize the journalistic process with respect to getting information that's classified. If in fact they can succeed in the Assange case, they will be taking away a journalistic right that journalists have had for years, which is to talk to a variety of people in order to gather information.

Due to the Pentagon Papers decision, the government can't stop Assange from publishing on his website, so they're trying to show there's a conspiracy, a criminal conspiracy, among members of the hacking community. This includes Private Bradley Manning, who leaked the material to Assange, and other hackers and Wikileaks enablers, and this way the government is hoping to get an indictment against Assange. Goodale says it's a parallel to what the Nixon government tried, unsuccessfully, to do to Neil Sheehan, the Pentagon Papers New York Times Reporter. Goodale surmises that the U.S. response to Wikileaks is due to an archaic understanding of the media landscape.

I do think that the way information is spread around the globe in a way that we haven't seen before startles people. And that the idea of Wikileaks being a repository for information may seem offensive to those who aren't familiar with it but I will note that the Wall Street Journal now has its own Wikileaks place for receiving information. So I think the response of indeed it took place is antediluvian, that is it reflects the past view of how information was transported around the world.

But is Julian Assange really like Daniel Ellsberg?

His stated agenda is not journalistic by any traditional definition, Assange has said he wants to label the U.S. as abusive and to make it reform, or to cause it to cease to be efficient through WikiLeaks sabotage.

I think he's playing both roles. He's a publisher same as the Times is and he's a source, journalists can be sources, and in this particular instance, his role as a source is no different than Daniel Ellsberg's, whose mission was to get the United States to stop the Vietnam War by publishing the Pentagon Papers.

But Daniel Ellsberg said last year on the Brian Lehrer Show that he sees Private Manning as his equivalent, not Julian Assange--who he sees as personifying the New York Times of 1971. But Goodale doesn't think that Private Manning should get off, or that it's a correct parallel.

We have to reflect on the fact that the amount of information that Manning let out is extraordinary, it's in the nature of a data dump and doesn't bring the same sympathy to us that the release of information that Daniel Ellsberg's does.

Secrets are things that damage national security. "There is not one piece of information in the Pentagon Papers that damages national security," Goodale said. And Wikileaks? Even less so, according to the attorney.

Read James Goodale's article in The Daily Beast.


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Comments [17]

Michael D. D. White from Brooklyn Heights

Fox News obviously has an agenda. That doesn’t disqualify it as a news media organization even if it diminishes its reliability, credibility and fails to qualify it as meeting certain standards of journalistic ethics.

The Times itself has agenda even if their agenda is more subtle and much more compatible with a more neutral presentation of facts.

The Times may be treating Assange as a source and rather than a partner journalist but the fact that the Times does not consider that it is partnering with Asssange doesn’t mean that Assange is not as much a free speech publisher as Fox News.

Aug. 19 2011 10:55 AM

@Stephen P. from Holmdel, NJ: Manning "dumped" the Afghan and diplomatic cables. WikiLeaks held back some cables as did the Times. The Times also held back some of the Afghan leaks. Manning's release of classified information can be characterized as a data dump because it was not selective, although he believed the release of information enhanced the causes in which he believed.

@Phil from Park Slope: The government apparently is trying to prove a conspiracy among those with whom Manning and Assange spoke. This attempt has nothing to do with WikiLeaks' co-operation with The New York Times.

@Edward from NJ: If WikiLeaks participated in acquiring information illegally there may be grounds for indictment of WikiLeaks. Mere newsgathering efforts to acquire information are not illegal. There is no suggestion at present that Assange did anything but gather information.

@Shawn from Soho: The government is not going after newspapers because they are publishers. It has said specifically it's not going after Assange under the Espionage Act presumably because he is also a publisher. Instead it is apparently trying to show that Assange is part of a conspiracy with Manning to induce Manning to violate the Espionage Act.

@Gary from Queens: I do not believe we have a national security problem under the current federal criminal codes for national security laws. Theoretically, laws could be drafted to penalize publication on a Web site or otherwise that constituted a clear and present danger to a nation or its people. None of your examples meet that test.

Jun. 30 2011 01:12 PM
Stephen P. from Holmdel, NJ

Again an "expert" repeats the inaccuracies that WikiLeaks and Assange "dumped" 2000,000 diplomatic cables. WikiLeaks worked with it's partners (NY Times, Washington Post, Guardiasn) to release ONLY a few thousand of those cables. WikiLeaks offered the government review of the materials to redact certain information, but they refused.

These respected partners newspapers receive pro-governemnt leaks everyday, but you will never see an attempt to investigate officials who provide this pro-government propaganda that appears unquestioned on page 1.

You can't partner with WikiLeaks and constantly try to distabce yourself from WikiLeaks at the same time, but this has been the stance since the start of the story by the principals including the NY Times.

The only hope that a U.S. citizen has of learning about incompetence and misconduct is through whistle blowers.
With the lack of accountability and the constant security state apparatus all around us LOOKING FORWARD is exactly what the unexposed and unprosecuted want.

Jun. 30 2011 11:44 AM
gary from queens

if you are an american supporter of jihad, and you send stolen classified information to jihadists in the US or abroad, the FBI will intercept it and prosecute you for sedition.


if you are an american supporter of jihad, and you POST stolen classified information ON YOUR BLOG, so that jihadists in the US or abroad can read it, then he ESCAPES prosecution for sedition.


Jun. 30 2011 11:38 AM
Amy from Manhattan

But the Times did vet the Wikileaks documents & decide which ones not to publish.

Jun. 30 2011 11:30 AM

The caller who described the awful stance of Bill Keller, John F. Burns and The New York Times on Wikileaks is exactly on point.

Keller's and Burns's efforts since their initially pathetic pro-government shilling is excellent evidence that they were caught in the act.

Jun. 30 2011 11:30 AM
Phil from Park Slope

Is the implication of this conversation that Wikileaks might be in jeopardy due to their cooperation with the NYT as a "source" rather than simply dumping the documents on the Internet as a "publisher"? In they past they had been criticized for lacking the robust editorial process of a traditional news organization, so that seems like an ironic outcome if this is the case.

Jun. 30 2011 11:29 AM

James Goodale is wrong on his most recent point. Manning didn't _publicize_ the cables at all; he turned them over to Wikileaks (assuming that it was indeed Manning).

Wikileaks in turn did NOT just dump them into the public lap. In fact, Wikileaks published a VERY small percentage and offered to collaborate with the Obama administration on this. Obama ignored Wikileaks until he decided to go on his witch hunt as part of his broader campaign against all whistleblowers.

Jun. 30 2011 11:29 AM

How is Assange different from Ailes in that regard (agenda meets journalism)?

Jun. 30 2011 11:24 AM
Bob from Pelham, NY

For the sake of accuracy, weren't Alexander Bickel and Floyd Abrams the lead attorneys who argued the Pentagon Papers case in the Supreme Court, not this guest?

Jun. 30 2011 11:24 AM
JollyD from NYC

"If you see something, Say something"

Jun. 30 2011 11:20 AM
Edward from NJ

Doesn't it come down to whether or not Wikileaks participated in acquiring information illegally. If the New York Times commissioned a reporter to break into a secure government database, that would be a crime. If they receive information from someone, who independently broke into the same data base, that wouldn't be a crime. In either case, the *publication* of that material isn't a crime. The question is what role Wikileaks took in acquiring the data. I don't know the answer to that question.

Jun. 30 2011 11:20 AM
Shawn from SOHO

Can Manning be protected for his exposing the crimes of the Government via the Whistleblowers protection act? Isn't Assange just the messenger of choice to crucify? Why aren't they going after all the newspapers? I view both as champions of free speech and trying to uphold justice.

Jun. 30 2011 11:17 AM

The record of John Burns and Bill Keller on Wikileaks sound like two spoiled brats upset that someone beat them to the cake.

Burns and Keller have been trying to walk back their reprehensible shilling for the US government for months.

And frankly, on the Middle East, the economy, US foreign policy, the New York Times has had an agenda for decades.

Jun. 30 2011 11:17 AM
Amy from Manhattan

I'm not sure I get the relevance of someone's having a PhD or being a member of Iceland's parliament to whether they should or shouldn't be subpoenaed in this case.

Jun. 30 2011 11:15 AM

I don't know the specifics of Goodale's views, but the Times record on Wikileaks has been appalling. Keller, several editors and reporters (including John F. Burns) excoriated Wikileaks. Then it turned out that the Times was using Wikileaks as a source. And then the Times started to change its tune while still trying to save face.

Jun. 30 2011 11:13 AM
gary from queens

I have a question for Mr. Goodale. Here's my setup:

In 2005, Dana Priest, Washington Post Staff Writer, wrote an article revealing the existance of "secret" CIA-run prisons. They held captured jihadits. That alone would have been close to the line of adversely affecting US national security interests. But she (and the supposedly responsible mainstream newspaper, WAPO) went further by citing the nations and general locations of the prisons in eastern europe and middle east.

Priest and WAPO had been criticized for placing US interests and lives at stake. What if, for example, the information that was published was instrumental in jihadists attacking one of those prisons with mortars or missile? Or perhaps one of the government figures of the host nation is kidnapped and held for ransom until the prisoners were released? There are enumerable examples.

I believe in defiance of these concerns, the Fourth Estate awarded Dana Priest in 2006 with the Pulitzer Prize for her reporting.

But what if an ordinary blogger of no official press credentials obtained the info Priest had, and was the first to report it on his blog? As a journalist (self-proclaimed is fine per Constitutional scrutiny), he would be immune from prosecution. What if he were a devout muslim? Still immune. What if his blog was sympathetic to jihad and terrorism? Still immune.

QUESTION FOR MR. GOODALE: Do we have a national security problem under the current federal criminal codes or national security laws?

Jun. 30 2011 10:06 AM

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