On June 13, 1971, President Richard Nixon found his administration in
an uncomfortable position.
The New York Times had begun
publishing a trove of secret
documents called the Pentagon Papers, exposing how president
after president had misled the American people about their
country’s role in escalating the Vietnam War.
-The lawyers who represented The Times had already given dire
warning that publication could subject them to prosecution under
the Espionage Act, that they could lose their television licenses, that
the publisher could go to jail.
All said with a very high level of intensity.
But The Times refused to stop publication, saying the American
people had the right to know the hidden calculations behind the war.
Nixon turned to the courts to stop them.
-They, they filed a lawsuit asking a federal judge to enter an order
barring The New York Times from publishing any more of the
Pentagon Papers than they had already.
They got to court after two days of publication.
It was very unusual for the government to go to court to try to
stop publication of anything.
But the idea of the government going to
court with respect to an ongoing news story was all but unknown.
For Nixon, the case was about more than stopping a leak.
He wanted to undercut the press.
-There’s more at stake in this debate than one newspaper series,
or even one major breach of security.
Sooner or later, we can expect this issue to come before
the Supreme Court, and the question there will be the role of
the press in a democracy.
The answer came quickly.
In New York Times Co. v. United States, the
Supreme Court ruled 6 to 3 that the Nixon administration did not have
sufficient cause to justify prior restraint, meaning it had failed to
show that publishing classified documents would cause imminent
harm and that attempting to stop publication was a violation of the
First Amendment protection for freedom of the press.
-At its core the Pentagon Papers case is a prior restraint case, a case
against allowing the government to stop speech in its tracks.
It was very embarrassing for President Nixon to
have gone to court and lost and have the Supreme Court write an
opinion vindicating the press that he hated so much.
But Nixon wasn’t finished.
Using a World War I statute meant to punish spies, Nixon’s Justice
Department indicted Daniel Ellsberg, the military analyst
responsible for leaking the Pentagon Papers to The Times.
-I was tried for a violation of what is commonly described as the
Espionage Act because it’s usually used for espionage, but I was tried
under it for a non-espionage offense.
It was a novel use of the law because, unlike a spy, Ellsberg’s
intention was not to help a foreign government.
He wanted to reveal the truth about the Vietnam War to
the American people.
-Daniel Ellsberg says he leaked the Pentagon Papers because the
government lied and concealed facts about the Vietnam War.
-We won’t stop the killing.
But this trial will inform the American public
in ways that it’s never heard before of how we’ve been governed in the
past quarter century and what censorship and deception
do to a democracy.
-I’m not for espionage, I don’t know anyone who is.
And I’m not against criminalizing that.
The question is, should it be criminal to
inform your fellow citizens of things that,
on the face, they ought to know?
That question was left unanswered as the Watergate scandal
enveloped the Nixon administration.
-The President said that in 1971, he formed an investigative unit inside
the White House to fight what he called “national security leaks.”
One of the first things that people in
that unit did was to burglarize the offices of Daniel Ellsberg’s
psychiatrist.
-With Watergate breaking out and with the revelation of the crimes
they’d taken against me, by an almost miraculous set of events, my
charges were dismissed.
But in the decades that followed, other presidents sometimes turned
to the Espionage Act as they waged their own battles against leaks to
the press.
-What’s been your biggest disappointment?
-The inability to control the, the leaks.
I think the District of Columbia’s one giant ear.
-I don't appreciate those who leak classified documents.
-If we can root out folks who have leaked, they will suffer
consequences.
During the Obama administration, eight people were charged with
violating the Espionage Act for sharing government secrets with
the press, more than all previous administrations combined.
Matthew Miller was a senior official in the Obama Justice Department.
-If you look the other way, then you only encourage other people to
leak national security secrets.
You do have to show that there are
consequences for leaking information that could harm
national security.
And the only way to do that is to prosecute some of
the individuals responsible for the most egregious leaks.
There are secrets that need to remain secret.
Miller says that keeping secrets secret became more challenging in
the digital age.
Massive leaks of classified information by Edward Snowden
and Wikileaks showed how vulnerable secrets had
become.
-We begin tonight with that mountain of secret wartime
information exposed in the press today, more documents than the
Pentagon Papers during Vietnam.
But in trying to control leaks, Obama moved into territory that
other presidents had largely avoided.
-I’m sitting at my desk and I get an email that looks like it’s from the
Department of Justice.
I’m not sure what it is.
And I look at Matt, and I said, “Matt, what is this?
Is this spam?”
-And I said, “It’s not spam.
The government just took our phone records.”
In May of 2013, former Associated Press reporters Matt Apuzzo and
Adam Goldman learned that the government had seized their phone
records during an investigation into who leaked details of a C.I.A.
operation in Yemen.
The dragnet scooped up records from phones
used by more than 100 reporters and editors.
-One thing we heard again and again from prosecutors was, “Well
of course we took the phone records for your editors and your
colleagues and your bureaus and swept everybody up, because that’s
exactly how we would investigate a gang.”
Well, we’re not a gang.
We’re a newsroom and,
you know, the right to deal drugs isn’t in the Constitution.
So, there should be a recognition that what happens in
the news-gathering process is a little different.
It felt like it was just an investigation intended to send
the message, “Don’t talk to reporters.”
-Yeah.
-It had the desired effect.
In the case of a classified leak to Fox News, the Obama Justice
Department went so far as to imply that correspondent James Rosen,
because of his reporting, could be charged with a crime.
-In court papers, an FBI agent said Rosen asked, solicited and
encouraged a source to give him sensitive information about North
Korea and that he was a possible co-conspirator for violations of the
Espionage Act.
-Not until that moment had the United States government ever
characterized the behavior of a journalist as being that of a
co-conspirator to a crime for asking questions about government policy.
Rosen was never charged, and following an outcry by news
organizations, the Obama administration reined in some of
the more aggressive tactics used to obtain journalists’ records.
-We must enforce consequences for those who break the law.
But a free press is also essential for our democracy.
That’s who we are.
And I’m troubled by the possibility that
leak investigations may chill the investigative journalism that holds
government accountable.
-While there’s a necessity to protect national security, there is also an
enormous need for an informed public.
And so while, you know, one can justify certain prosecutions of
leakers, the risk of them is that it does provide a roadmap for a
hostile administration to really try to bring the press down.
-Your organization’s terrible.
Your organization’s terrible.
Let’s go.
No, I’m not going to give you a question.
I’m not going to give you a question.
You are fake news.
After his election, President Donald Trump aggressively ramped up the
use of law enforcement to attack leaks...
-We’re going to find the leakers.
They’re going to pay a big price for leaking.
… as part of a larger war…
-I think the media is the opposition party.
...against the press.
-The press has become so dishonest that, if we don’t talk about it, we
are doing a tremendous disservice to the American people.
During his administration, at least six people were charged with
violations under the Espionage Act, including Julian Assange from
Wikileaks.
But, in investigating leak cases, it secretly obtained hundreds
of phone records of reporters and cast a wider net than ever before.
-Prosecutors subpoenaed Apple for data from the accounts of at least
two Democrats on the House Intelligence Committee, aides and
family members.
One was a minor.
-I think, in this day and age, the value of the unofficial story – the
story that has not been sanctioned by the government – that value is
greater than it’s ever been.
President Biden, who is continuing the prosecution of Julian Assange,
has signaled that his administration won’t allow reporters’ phone
records to be seized.
Having lived through the Nixon administration, Daniel Ellsberg
knows how dangerous the abuse of the Espionage Act can be.
He says it’s critical that no president is given
the power to dictate the truth.
-Can you really have democracy, in a real sense, with the government
having the final voice and the total voice as to what citizens shall know
about what they’re doing, and whether they’re telling the truth,
and whether they’re obeying the law?
I would say no.
If they have the last word, and if citizens can
only know what the government tells them,
it’s a mockery of a democracy.