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In episode 24 of Supreme Court Briefs, a man exposes dark government secrets about the Vietnam War, and gets in big trouble from the government for it. Should whistleblowers be protected?
Produced by Matt Beat. Music by Electric Needle Room (Matt Beat). All images found in public domain or used under fair use guidelines. Punching sound effect: Mike Koening (CC) soundbible.com/1773-Strong-Pun...
Check out cool primary sources here:
www.oyez.org/cases/1970/1873
Other sources used:
en.wikipedia.org/wiki/New_Yor...
en.wikipedia.org/wiki/Pentago...
McNamara, Robert (1996). In Retrospect. Random House.
www.history.com/topics/vietnam...
www.law.cornell.edu/supremeco...
magicvalley.com/opinion/column...
www.nytimes.com/2017/12/24/bu...
www.pbs.org/pov/mostdangerousm...
Secretary of Defense Robert McNamara creates the Vietnam Study Task Force at the Pentagon to create a study of the Vietnam War, which, by the way, was raging on the time with no end in sight. This study was to remain classified but released to the public eventually, as McNamara wanted to leave a written record for historians.
Working on this task force was a dude named Daniel Ellsberg, who became very troubled by what he found. You see, the Pentagon was telling the American public one thing, but actually doing other things. For example, the Pentagon was lying about escalating the war even when victory was hopeless. It had covered up doing some quite horrible things, like illegal bombings in places like Cambodia and Laos, and the use of chemical warfare.
Well Ellsberg, who had become strongly against the Vietnam War, decided he was going to fight the power! In October 1969, he and his friend Anthony Russo began secretly photocopying pages from this study, which eventually became known as The Pentagon Papers. By the way, the Pentagon Papers were thousands of pages long.
So yeah, he photocopies and decides to take them to the press to expose all of the Pentagon’s dirty secrets. In March 1971, he gave 43 volumes of the Pentagon Papers to Neil Sheehan, a reporter for The New York Times. On June 13, 1971, the New York Times began publishing a series of articles based on what Ellsberg had leaked. It also included excerpts from the actual Pentagon Papers.
When President Richard Nixon read these articles, he was like, “this kind of makes our government look bad...plus, isn’t this putting our national security at risk?” By the way, that’s EXACTLY how he sounded. A couple days later, the Nixon administration got a federal court to force the New York Times to stop publishing articles about the Pentagon Papers. Nixon’s Attorney General, John Mitchell, argued that Ellsberg and Russo were guilty of breaking the Espionage Act of 1917, so this “prior restraint,” or pre-publication censorship, was justified. In fact, the Nixon administration argued that the Times publishing the Pentagon Papers put the country’s security at risk.
Meanwhile, the Washington Post got in on the action and began publishing its own articles about the Pentagon Papers. The assistant U.S. Attorney General, William Rehnquist, a future Supreme Court chief justice, also tried to prevent the Post from publishing any more Pentagon Papers secrets. Eventually, 17 other newspapers published parts of the study.
On June 28, 1971, Ellsberg surrendered to face criminal charges under the Espionage Act. The next day, a young Senator named Mike Gravel, who inexplicably throws a rock in a pond later in life, read the Pentagon Papers out loud for three hours, entering them into the Senate record. As you could imagine, by the time the American public is fired up about the revelations contained in these documents.
Newspapers kept publishing stories about the Pentagon Papers, and the District Court for the District of Columbia and Court of Appeals for the DC Circuit both let them, so the Supreme Court decided to quickly step in, combining the cases against both the New York Times and the Washington Post. In case you hadn’t figured this one out by now, this was an obvious First Amendment issue. The Court heard arguments about whether or not the Nixon administration's efforts to prevent the publication of the Pentagon Papers went against the First Amendment. Was prior restraint justified? Did releasing this information put national security at risk?