29169_wlp_1-1 Sheet No. 14 Side A 06/07/2011 09:44:19 – – APERS P at 382 a leak a id. s not bad s torrent. ’ ’ —“ ENTAGON ENTAGON P OTHING IS OTHING Senator Fulbright, 68 (Mathias); – Sheehan of secretSheehan and of top ,N — † s plan B. It ’ 2 at 366 at id. IETNAM AND THE V s leak is tomorrow ’ LASSIFIED C 21 EMOIR OF 63 (McGovern); (McGovern); 63 LASSIFIED :AM 1.5 million words of historical narratives1.5 million words of historical – present. A long-time foreign correspondent and Emmy Emmy and correspondent foreign long-time A present. C – — 1993, and he worked again for the network from 1997 from network the for again worked he and 1993, Senator Mathias,Congressman and was Daniel Ellsberg Daniel was s thenapproach was purposeful – ’ ECRETS at 358 rrespondent. Before joining Before CNN, Dean Bierbauerrrespondent. was ABC’s –66 to Ellsberg’s leak (describing as hopeda backup plan, but Ellsberg initially ,S id. CHARLES BIERBAUERCHARLES 68. 68. ) 5/24/2011 ) 8:37 PM One by one, they read what only Ellsberg was was Ellsberg read what only one, they by One – 1 09, 365 09, Times Ellsberg – ELETE LLSBERG VERYTHING IS VERYTHING 3 D would be his allies in disclosing the buried truths of the truths of the buried the would be his disclosing allies in E E OT — N O at 206 at 206. at at 363, 365 363, at As any plumber knows, today As any ANIEL 4 Id. Id. Id. When Ellsberg approached Sheehan in 1971, he was sitting was sitting approachedWhen Sheehan in 1971, he Ellsberg Ellsberg returned journalist, the to a familiar receptive and Ellsberg ” New York Times Neil Sheehan, Neil to whom he had begun information leaking as HEN ’ winning Washington reporter, political Dean Bierbauer CNN’s was Senior White the at Studies Information and Communications Mass of College the of Dean having the having he more than 7000 pages † 3. 1. D 28 (2002) (Fulbright); (Fulbright); (2002) 28 W “ – M K on day of a closely held that showed high-level something day secret, access. early as 1968. Times Senator McGovern, that Congressional skeptics of the Vietnam War that Congressional Award- 1984 from Correspondent House 2002 South Carolina, of University T Co Court Supreme its as 2001 in and bureau Germany. Bonn, Bureau later its Moscow Chief chief BIERBAUER (D 326 83 (McCloskey). 83 (McCloskey). 2. prepared to show them, but turned him down. McCloskey Papers. Pentagon secret government documents in March 1968). March 1968). in documents government secret 4. C Y 29169_wlp_1-1 Sheet No. 14 Side A 06/07/2011 09:44:19 A 06/07/2011 14 Side Sheet No. 29169_wlp_1-1 29169_wlp_1-1 Sheet No. 14 Side B 06/07/2011 09:44:19 M K C Y as 5 NITED ” Times Times .U note 1, at The legal The legal 11 [Vol. 1:1 [Vol. supra 13 , June 13, 1971, at at , 13, 1971, June , ” further publica- OMPANY VS Hedrick Smith Hedrick Smith Washington Post Post Washington ” C ’ IMES LLSBERG IMES ), 403 U.S. 713, 713 (1971) 713 (1971) 713, 403 U.S. ), T E Times , N.Y. T ORK Y 86. see also – EW also was also enjoined. heavy burden justi- of showing ); N enough to fill a small crate, a small enough fill to “ argued before argued the U.S. Supreme 03. 03. — HE at 384 Pentagon Papers Pentagon Post – 12 s top reporters and editors had had id. ’ 74. 74. 1 T – Smith did not disclose how theSmith did not disclose assessments of the situation in Viet- of the situation assessments ’ 7 the most complete and informative cen- the most complete 27 (Arno Press 1971). 1971). Press 27 (Arno — at 372 at see also , Washington Post note 1, at 402 began printing the Pentagon printing Papers on June began ISTORY reprinted in reprinted H note 1 note note 5; note Vast Review of Vast a Year Review Took War supra ) 5/9/2011 ) 11:01 AM , Times supra supra , ELETE D WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & OT http://www.nytimes.com/books/97/04/13/reviews/papers-first.html. http://www.nytimes.com/books/97/04/13/reviews/papers-first.html. LLSBERG The N E Smith, Smith, 8 would describe it, of accumulated documents and analysis OCUMENTARY O LLSBERG The overall effect of the study . . . is to provide a vast store- See Id. Id. See Sheehan first saw what Ellsberg had collected and copied on and copied on had collected Ellsberg what Sheehan first saw Other writers in this collection of essays will focus on the on the will focus of essays Other writers in this collection “ Ellsberg delivered delivered a to the second collection Ellsberg The archive showed what those knew, administrations what :AD 6 10 A cadre of the newspaper Times 96. available at available 9 – TATES had acquired the Papers. 12. March 12. 12. 1971), 15, (S.D.N.Y. June 10. RestrainingTemporary Order, United Co., 71-2662 States v. N.Y. Times No. (per curiam). A1, E 6. 7. 8. legal parameters of the decision. However, from a journalistic legal parameters of the decision. However, from a journalistic any a vindication to publish. But the right this was for perspective, of the unprecedented the sting by had to be tempered sense of victory Court decision a the Supreme Nor was right. that attempt to suppress the of successive administrations process was put on a fast track, nam. S 5. Hedrick Smith, 5. wrote in the article that accompanied the installment first from the PapersPentagon themselves. 13. assess whatthree months to moved had fallen into its hands. Things more swiftly after that. the third installment, the NixonBy adminis- tration had acquired an the halting injunction tion. and the disclosures resumed. The 22 documents of words a million plus hadto. blind and disclosed, were what they they house of new information tral archive thusavailable era, on the Vietnam far BIERBAUER (D restrainingrary order against the 11. tempo- limited a (sustaining (1971) 943 Post Wash. 403 U.S. Co., v. States United 395 9. 9. 13. ( States Co. v. United N.Y. Times Court on June 26 and decided on June 30 with the succinct rebuff hadthat the government not met the fication for the enforcement of such a [prior] restraint. 29169_wlp_1-1 Sheet No. 14 Side B 06/07/2011 09:44:19 B 06/07/2011 14 Side Sheet No. 29169_wlp_1-1 29169_wlp_1-1 Sheet No. 15 Side A 06/07/2011 09:44:19 — m- — first , USA , USA ’ George George 15 available at available ” 17 10:04 AM), AM), 10:04 available at available Times – 18 23 Clinton Impeached; Pres- Impeached; Clinton Nixon of staff chief — ” 001, White House Tapes House White 001, – s impeachment, ’ , A1, at 1986, 26, Nov. -payment-found-diverted-to-contras-reagan- IMES 3 to lift the injunctions, with Chief Chief with the injunctions, lift 3 to Clinton – 16 lick on the bold text link that reads link “Transcript,” text on bold the lick Iran Payment Found Payment Iran DivertedContras; to Reagan N.Y. T Iraq Assessments ‘Dead Wrong,’ Bush Told Bush Wrong,’ ‘Dead Assessments Iraq , , Dec. 20, 1998, at A1, A1, at 1998, 20, , Dec. Impeachment: The President IMES ) 5/9/2011 ) 11:01 AM T ELETE D s wrong, and the can President be wrong. heels of nearly every President Nixon since ’ OT ’ N O It shows thatIt people do the President things wants to , Diamond, John , N.Y. , Bernard Weinraub, , James Bennet,, James (D “ PDF 14 s purported Iraqiof mass destruction. weapons ’ The implicit infallibility ofThe implicit infallibility presidents, which has been an s Iran-Contra scandal, s Iran-Contra See, e.g. See, e.g. Id. Forty years beyond the Pentagon Papers, the media Papers, the Pentagon Forty beyond landscape years Presidential fallibility has been a staplealmost fallibility Presidential of reporting The Pentagon Papers were the clear linchpin for the “ ’ s audacious Oval Office tapes to further the fall. But it also it also But Office tapes to furthers audacious Oval the fall. ’ EVERYTHING IS CLASSIFIED WHEN , 7A. at 2005, 1, Apr. . See, e.g. See, . 16 M K ODAY Reagan is dramatically altered. In the digital world and the 24/7 news envi- and the 24/7 world altered. is dramatically In the digital ronment, there is a daily of barrage information, analysis, and espe- it opinion. The around with uscially, carry is ubiquitous; we Internet on our cell phones and is at iPads. It once transparent and shallow, deep.dense and W. Bush on the Achilles 14. 519 Bob Haldeman Nixon, Richard Tape: Audio do even thoughit 2011] 6 divided Court the dunk; slam BIERBAUER 4.28. Warren Burger, Justice Harry Justice Blackmun, and Justice John Harlan dissenting.Marshall II cascading U.S. tumble of and policy Vietnam the Nixon presidency. of Watergate and plumbers President bumbling True, it took the Nixon Papers the Pentagon degree the of encouragement derived from engendered reporters in would discover who and disclose the Water- cover-up.gate this, hurt by is badly in America, accepted thing H. R. Haldeman told the President on the day after the on the day President told the H. R. Haldeman disclosure. http://www.nytimes.com/1998/12/20/us/impeachment-the-president-clinton-impeached- president-digs-in.html. 18. T http://www.nytimes.com/1986/11/26/world/iran security-adviser-and-aide-are-out.html. 17. ident In Digs Presidential Recording Program, (June 14, 1971, 8:49 AM 8:49 14, 1971, (June Program, Recording Presidential http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB48/nixon.html (to hear audio complete the andof recording, page of middle bold reads: click to link that “Audio: text scroll Nixon Office Oval meeting with H.R. Haldeman, Monday 14 June 1971,P.M.”; 3:09 a co for plete theof transcript audio recording, c the below immediately Haldeman audio link). 15. SecurityAre Out Adviser Aide and C Y 29169_wlp_1-1 Sheet No. 15 Side A 06/07/2011 09:44:19 A 06/07/2011 15 Side Sheet No. 29169_wlp_1-1 29169_wlp_1-1 Sheet No. 15 Side B 06/07/2011 09:44:19 . M K i- 23 C Y ASH The The Times , W 19 There are [Vol. 1:1 [Vol. ISTORY OF THE OF THE ISTORY in Germany, in Germany, 20 , Nov. 29, 2010, at see also A Note to Note to also A see :AH IMES that were gathered were gathered that 22 TOPPED Break WikiLeaks Ban S , N.Y. T , N.Y. Der Spiegel Spiegel Der RESSES P The WikiLeaks cables are an . (July 28, 2010, 2:18 PM), PM), 2:18 . 28, 2010, (July 21 in France Assange sought out by to Pentagon Papers, Part 2? Parallels, and Differ-Pentagon2? Parallels, Papers, Part New York York Times New EV AY THE THE AY R D ’ decision to publish cables classified the from Wik was one of five international publishers, publishers, one of five international was in Great Britain, in Great Britain, HE ,T Le Monde The Behind Story the Afghanistan Publication of WikiLeaks’s addressed WikiLeaks with much the same as yet uncounted but numbering in the hundreds in the hundreds but numbering uncounted as yet massive materials of array ’ , July 27, 2010, at C1. 1 (1996). 1 (1996). ) 5/9/2011 ) 11:01 AM OURNALISM — Leak of a Leak Lets Lets of a Leak Leak OST New York Times ASE ASE centered dispatcheson confidential digital and docu- ELETE UDENSTINE Guardian s analog for Daniel Ellsberg may be the enigmatic enigmatic be the may Daniels analog for Ellsberg .P C D ’ R .J Times — WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & OT ASH New York Times N Clint Hendler, Clint Hendler, O APERS OLUM AVID , W P in Spain, and See The Today The . Id. . , Nov.30, 2010, at C1. , C 20 ENTAGON OST Logs protected its interests. Sheehan, its interests. protected unknown to hadEllsberg, secretly copied the Pentagon Papers had that Ellsberg provided access to but Readers: The Decision to Publish Diplomatic Documents Diplomatic Readers: to Publish Decision The 21. D 21. ments about the U.S. inwars andIraq Afghanistan. 22. Paul Farhi, Farhi, Paul 22. http://www.cjr.org/campaign_desk/the_story_behind_the_publicati.php; parallels, and there are divergences. The Pentagon Papers are divergences. The and there parallels, were Pentagon the Department Defense of as assess- a focused commissioned by Vietnam policy. ment of U.S. electronically by a disillusioned young American a disillusioned by electronically soldier, U.S. Armyyoung Manning. Bradley Pfc. Papers. dis- the Pentagon it had used thoroughness in assessing It the Schmitt,Eric reprise to reporter, affairs military top a patched Sheehan Neil role. Schmitt, judged like Sheehan earlier, that the dis- authentic. were patches he had seen Afghanistan regarding WikiLeaks cables WikiLeaks P ences, Exist P 19. Paul Nakashima, and Ellen Farhi 24 hackercomputer Julian The Vietnam-eraAssange. Papers Pentagon dump of documentsare government the massiveechoed in digital on WikiLeaksand cables latter in the that began of 2010. half BIERBAUER (D 23. 23. Assange, an international gadfly, came gadfly, Assange, an international off as a bit more suspicious than the intense intelligence insider Ellsberg. each In case, the A10 (explaining the and theLeaks decision justifying based in on the public important illumination interest the U.S.of diplomatic that been efforts have met with varying degrees success). of undigested harvest of a harvest undigested of broad swath government-originated intel- ligence. Beyond documents, each trove includes a rich collection of and embarrass. enlighten that can both diplomatic cables of thousands along with the along El Pais publish WikiLeaks 29169_wlp_1-1 Sheet No. 15 Side B 06/07/2011 09:44:19 B 06/07/2011 15 Side Sheet No. 29169_wlp_1-1 29169_wlp_1-1 Sheet No. 16 Side A 06/07/2011 09:44:19 LOG had had B you- S “ — ’ ., 30, Jan. ALY AG D The Wiki- M New York TimesNew York 27 WikiLeaks vs. the WikiLeaks vs. the ” HRIS We provide an IMES C Floyd Abrams, Op- Floyd “ 25 T with ROF ROF 25 s nightly routine of s nightly ’ . A13 at 2010, J., 29, Dec. , P T , N.Y. S David Martin, David generated much specula- ALL “ and , W note 19 that (contending the WikiLeaksand If it had, it was primarily in the in the primarily it had, it was If (July 26, 2010, 6:06 PM), PM), 6:06 2010, 26, (July supra 26 ” COM . EWS s further collaboration. The collaboration. cables obtained s further ’ The newspaper The havecould forward moved ) 5/9/2011 ) 11:01 AM 24 journalism, diplomacy, life know it life as we journalism, diplomacy, Wikileaks and the Pentagon Papers Pentagon and the Wikileaks ELETE — D OT The BoyThe Who Nest Kicked Hornet’s the , CBSN ,2011). 22, Mar. visited (last http://213.251.145.96 N executive Keller wrote. Bill editor O Fahri & Nakashima, Fahri & Nakashima, insouciance compared to Ellsberg (D ” EAKS PDF L Chris Daly, Chris Daly, Times IKI Floyd Abrams, Floyd the First Amendment scholar who appears We regarded Assange throughout as a source, notas a part- ” See Id. Compare Indeed, theIndeed, WikiLeaks website is solicitous: WikiLeaks had, as Keller mused, WikiLeaks “ 28 EVERYTHING IS CLASSIFIED WHEN Why WikiLeaks Is Unlike the Pentagon PapersWhy WikiLeaks Is Unlike M K Pentagon Papers Pentagon Pentagon Papers controversies are parallel in that they both portrayed ongoing wars in wars ongoing portrayed both they that in parallel are controversies Papers Pentagon acknowledged), officials publicly government than terms worse stuffing his briefcase at the Rand think tank, then smuggling the doc- smuggling then his briefcase tank, think at the Rand stuffing safe theuments back to his them. next after copying morning innovative, secure and anonymous way forinnovative, secure and way independent sources anonymous around the world to leak to our journalists. information profoundly changedprofoundly forever. http://www.cbsnews.com/8301-503544_162-20011710-503544.html (acknowledging dif- (acknowledging http://www.cbsnews.com/8301-503544_162-20011710-503544.html ferences between the controversies, two including the how WikiLeaks cables provide a de- a than expose rather foundering, as public the by long-perceived war a of foreign tailed view much than picture thought theworse a foreign war what of Americanbe by truewas to the case public,PapersPentagon as was the with release). Leaks Leaks flood induced divergences, but mostly from theparallels, case of the Pentagon a wave Papers. of analytical articles examining tion that something withheld the most damaging volumes about diplomatic efforts from its release of the claims(rejecting that the two controversies are parallel and arguing that the the of release its from efforts diplomatic about volumes damaging most the withheld apparently WikiLeaks releases while harming of diplomacy, U.S. PentagonPapers fear for considerations), diplomatic of regardless information 24. 24. 2011] over.not handed had BIERBAUER 4.28. 2011, at 33, 34. 34. 33, at 2011, W 26. 27. 28. 28. Ed., Ed., (Oct. 3, 2010, 10:27 PM), http://journalismprofessor.com/2010/10/03/wikileaks-and-the- PM), 10:27 3, 2010, (Oct. Keller, the surrounding events of the sequence of account a detailed (providing pentagon-papers Bill Pentagon Papers saga). 25. with or without Ellsberg with or without McLuhanesque way McLuhanesque way thatof suggesting the medium the message was more than the a bulging drive had thumb content. Pilfering a can-do-it-too by WikiLeaks in contrast, were essentially handed essentially WikiLeaksto the five over in contrast, were by organizations. news handpicked ner or collaborator, but he was a man who clearly had his own agenda, C Y 29169_wlp_1-1 Sheet No. 16 Side A 06/07/2011 09:44:19 A 06/07/2011 16 Side Sheet No. 29169_wlp_1-1 29169_wlp_1-1 Sheet No. 16 Side B 06/07/2011 09:44:19 . M K ’ s s T ’ S C Y J.L. & ALL 2009 .J., Feb. Feb. .J., ” T , W By mid- By S Egypt OREST 32 F 33 ALL [Vol. 1:1 [Vol. AKE AKE , W , 1 W Mideast Unrest Spreads: Spreads: Unrest Mideast Wiki-leaked revelsin the revela- “ 30 “ ” from the from ”— a pervasivecandor by lack of the “ recently drew a clear line between the drew recently a clear the between line and WikiLeaks that Fall of Mubarak Shakes Middle East Middle Shakes Mubarak of Fall ” 29 WikiLeaks CablesEgypt’s Cast Hosni Mubarak as Ruler for ), http://www.guardian.co.uk/world/2010/ 9, 2010, Dec. ThePapers Pentagon After Four Decades note 28. 28. note ) 5/9/2011 ) 11:01 AM ONDON simply because simply they are secret. ELETE (L he seems to God and to be trusting mil-the ubiquitous ’ supra D WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & OT —“ N , Simon Tisdall, Tisdall, , Simon O In contrast, WikiLeaks has titillated us with the insidersthe with us titillated has WikiLeaks contrast, In 31 secrets Id. E.g. While WikiLeaks act offinds the disclosure an enditself, in While journalists have a great While have a great appreciation journalists for sunshine laws ‘ The leaked cables for distant but added insight observers, UARDIAN UARDIAN 34 7 (2011). 7 (2011). Y ’ , G OL cable of the Ambassador U.S. in Cairo, Margaret Scobey. tion of Ellsberg sought to transform policy. four retained to transform sought Ellsberg Notably, Ellsberg policy. volumes of diplomatic cables that accompanied the forty-three- diplomatic the Papers of protecting as his means volume Pentagon process. February 2011, after eighteen days of persistent, of massive demonstra- 2011, after eighteenFebruary days gone. and astonishingly swiftly was tions, Mubarak P J., Feb. 14, 2011, at A1. A1. at 2011, 14, Feb. J., 29. Floyd Abrams, Abrams, Floyd 29. Abrams, 30. view of diplomatic confidentialities. One of the benefits over One confidentialities. view of diplomatic time of be its could WikiLeaks revealing perspective on those in not the yet demonstrations against Egyptianheadlines. When Hosni President of 2011, we knew broke out in January Mubarak about his grip more on power security and civilian servicesitary peripheral not always to the events. Thatwere be the case if might leaked documents inflame or exacerbate a situation. most bodies to public scrutiny, that open the work of governmental inclined to accept a need for some are Reporters ofdegree secrecy. who travel with troops in areas combat understand the sensitivities of exposure and are generally not inclined to disclose troop strengths to makeand movements. They willing certain tradeoffsare for access, as when deployed or embedded with troops. 26 elsewhere in this Issue, BIERBAUER (D 12, 2011, at A1. at A1. 12, 2011, Sets Elections Dissolves Parliament, Egypt Bahrain, Libya; Protests Iran, Target 34. El-Ghobashy, Tamer & Bradley Matt Coker, Margaret dec/09/wikileaks-cables-hosni-mubarak-succession. 33. Charles Levinson et al., Pentagon Papers that revealed Pentagon government to its people government 31. 31. 32. Life military assumed temporary power, pending power, pending electionsassumed temporary later in the military year. 29169_wlp_1-1 Sheet No. 16 Side B 06/07/2011 09:44:19 B 06/07/2011 16 Side Sheet No. 29169_wlp_1-1 29169_wlp_1-1 Sheet No. 17 Side A 06/07/2011 09:44:19 s per in an ’ White White ” — 27 s continuance amounts ’ But he was not absolutist: he was not absolutist: But 37 ” 36 ” the only upon effective restraint the only “ 38 Justice wrote,Black also in Hugo ” ” could not find carte blanche in the Post I would have no difficulty in sustaining I rebuking should have made the should have made Nixonrebuking ’ “ ) 5/9/2011 ) 11:01 AM and the , 403 U.S. 713, 729 (1971) (Stewart, J., concurring). J., concurring). (Stewart, (1971) 729 713, U.S. 403 , ELETE [A]nd the system becomes one to be disregarded D “ OT I believe moment that every I 35 N “ O Times (D PDF at 728. 728. at concurring). J., (White, 733 at 737. at White suggested the government already had recourse to [F]or the first time in the 182 since the ofyears founding the For when everything is classified, then nothing is is then is classified, whenFor everything nothing classi- Pentagon Papers Pentagon Id. Id. Id. Id. Id. “ If the If Reporters Reporters can, though, be frustrated the by penchant military “ Justice Stewart found that Stewart found Justice Justice Byron White, added, with the judgment, concurring Byron Justice s ruling, thes ruling, Justices 40 39 ’ wrote Justice Potter Stewart, concurring with the Court withStewart, concurring the wrote Justice Potter EVERYTHING IS CLASSIFIED WHEN ” ” M K In the areaIn of basic national defense the frequent need for absolute That the Government chose to proceed injunction mistakenly by Court administration blanch. blanch. administration Republic, the federal courts are asked to hold that Amend- the First it says, what ment does not mean a concurrence. “ could not successfully proceed in another does not mean that it way. “ is, of course,secrecy self-evident. 35. 35. 36. 37. 38. 39. 40. 2011] or over-classify already whatto classify be may public knowledge the opinion striking their of secrecy. In behind the system and to hide Papers, publication the of the Pentagon that prohibited injunction too.frustrated, Justices Court were Supreme fied, criminal code prohibitions certain photographs publishing against and drawingsmilitary of or classified installations information about intelligence.cryptographic BIERBAUER 4.28. curiam decision. convictions under these thesections on facts that would not justify of equity and restraint,intervention of a prior the imposition wrote. by theby cynical or careless, the to and be manipulated those by intent on self-protection or self-promotion. informed and critical public opinion. executive policy and power in lie in may affairs international an enlightened citizenry the areas of national defense and C Y 29169_wlp_1-1 Sheet No. 17 Side A 06/07/2011 09:44:19 A 06/07/2011 17 Side Sheet No. 29169_wlp_1-1 29169_wlp_1-1 Sheet No. 17 Side B 06/07/2011 09:44:19 M K 42 43 C Y ” Rosenthal Rosenthal , June 11, 1991, 1991, 11, , June [Vol. 1:1 [Vol. Max Frankel, as as Frankel, Max 45 formants!” IMES s chief in-houses chief T ’ Two days later the later the Two days But we also had law- , N.Y. 47 “ sources and in 58 (describing the decision to print the a view respect,I but reject. – its — ’ Washington Bureau Chief, Chief, Bureau ’ Washington Times those who view thethose who Amendment First 44 “ e Times thus asserts a right to guard the note 21, at 56 46 supra On My Mind; The Pentagon Papers The Pentagon Mind; On My still wrestled with the decision of publishing or , ) 5/9/2011 ) 11:01 AM 15 (Black, J., concurring). J., concurring). (Black, 15 managing editor at the time of publication. the But ELETE ’ – Times 41 D ” A. M. Rosenthal wrote in 1991, on the twentieth anni- WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & OT Interestingly, the Times explained its refusal to allow the explained the Times the to allow its Interestingly, refusal UDENSTINE ” s outside legal the venerable counsel, New York firm N “ R ’ O at 748 (Burger, C.J., dissenting). dissenting). C.J., (Burger, 748 at at 714 at at 751 n.2. n.2. 751 at Times Rosenthal recounted, the citing newspaper Id. Id. See Id. Id. Id. Id. And there wereAnd there Chief Justice dissents. Burger viewed the The decision fell to publisher Arthur Ochs Sulzberger, Sr., to publisher Sulzberger, The decision fell Arthur Ochs ” All the reporters and editors directly involved were strongly strongly and All the reporters editors directly involved were for “ ed States has that power.” ed States has that 43.

Lord, Day disagreed and walked out. Day & Lord, Lord, newspaper who understood the yers AmendmentFirst and purpose the of news- papers, counsel James Goodale. a joke). case as an easy call only for as an circumstancesabsolute in all who gave the order on June to print 11, 1971. was the was Papers Pentagon public.were that same edition of Sunday Ironically, 41. 41. 28 indefensible, violation flagrant, to a continuing and the First of Amendment. BIERBAUER (D documents and relating that Sulzberger’s announcement of his decision to publish was was publish to his decision of announcement Sulzberger’s that relating and documents the and Rosenthal by understood initially at A23. A23. at 46. 47. Burger then concluded, “Th then concluded, Burger The Chief Justiceprocess was being the whole complained that was of what grasp have a full he did not certainly rushed and that being nor forenjoined, thatwas the matter to itself likely government be certain. Government to examine its own purloined documents saying in by compromise might substance this ofsecrecy sources its thatwhile denying the ofGovernment the Unit assessing, the and even Indeed, after nearly months of authenticating three 42. 42. 44. 44. 45. M. Rosenthal, A. not. publication, ofPapers. the decision to publish the Pentagon versary 29169_wlp_1-1 Sheet No. 17 Side B 06/07/2011 09:44:19 B 06/07/2011 17 Side Sheet No. 29169_wlp_1-1 29169_wlp_1-1 Sheet No. 18 Side A 06/07/2011 09:44:19

a- agon Los note note apers apers ,the ,the , N.Y. Post- Pentagon supra on and on. on. on and , , the — on their vulnera- and the s effort and the s effort theand 29 18. UDENSTINE ’ – the courts, the Pentagon Baltimore Sun Globe join publication of the Pent the of join publication The y of government attempts to censor to censor attempts of government y 49 , Dec. 2, 2010, at A13 (discussing the the (discussing A13 at 2, 2010, , Dec. her major newspaper that was not yet not yet that was newspaper her major reported heavily on the legal reported heavily on the legal works’ refusal based refusal was works’ , July 3, 1971, at 17 at 3, 1971, , July IMES St. Louis Post-Dispatch — T were enjoined, Ellsberg increased enjoined, were erg’s efforts to publicize the Pentagon P Pentagon the to publicize efforts erg’s Newsday. the others were not. the others were The broadcast ORKER , the Y 52 50 s Watergate reporters Bob Woodwards Watergate 48 , N.Y. ’ Post U.S. Weighs Prosecution of WikiLeaks Founder, but but Founder, WikiLeaks Prosecution of U.S. Weighs EW , and , N one newspaper was enjoined was one newspaper by and ) 5/9/2011 ) 11:01 AM Tricia Nixon Takes Vows in Garden at White House Takesat Nixon VowsTricia White Garden in , Judge Roger Robb of the Court of Appeals the D.C. Cir-for Appeals the Court of Robb of Roger , Judge note 21, at 384. note 21, at The Pentagon Papers did not open the flood- Papers did not open the The Pentagon he government’s request to en request government’s he ELETE 53 D Comment supra Times OT , Boston Globe N Broadcast networks, unlike use newspapers, the air- s offer to provide them with their own sets of the Pen- sets of the s offer own to provide them with their O , newspapers, the eleven Knight the ’ , Charlie Savage, 51 (D at 127 (explaining Ellsb 127 (explaining at s daughter Tricia. s daughter hapiro, hapiro, Washington Post Washington ’ ABC, CBS, and NBC and CBS, ABC, PDF Washington Post Washington Nan Robertson, Robertson, Nan Brief of the Respondents at 25, N.Y. Times Co. v. United States ( States United Co. v. the of Respondents N.Y. Times 25, at Brief also included also House White of the photos of wedding Pres- — were also enjoined; were UDENSTINE 84. Some strongly questioned the practicalit the questioned strongly Some 84. – See, e.g. See See See id. The leaking of the Papers Pentagon is an ongoing subject of After the EVERYTHING IS CLASSIFIED WHEN ), 403 U.S. 713 (1971) (No. 1885), 1971 WL 167582 at *25; at *25; R 167582 WL 1971 1885), (No. (1971) 713 U.S. ), 403 , June 13, 1971, at A1 (accompanying Neil Sheehan’s story first publishing the Pent the publishing story first Sheehan’s Neil (accompanying A1 at 13, 1971, , June Times M K IMES assessment, as we are doing here. Did Ellsberg embolden a genera- embolden Did Ellsberg doinghere. are assessment, as we tion of leakers? but not battalions. The threat of prosecution Some, away. has not gone waves under federal licensing. under federal waves through broadcast media and noting that the net the that noting and media broadcast through 1934). of Act Communications the under sanction to government bility as (codified Stat. 1064 48 (2006)). No. 416, Pub. L. seq. et of 1934, 151 § 52. Act U.S.C. 47 Communications amended 53. Hurdles Steep of Warn Scholars Legal 51. 51. 21, at 383 21, at Papers in the of swarm on a herd ride to us asking be you “Would General, Solicitor U.S. the asked cuit bees?” Fred C. S Dispatch T 48. 48. 2011] the ident Nixon BIERBAUER 4.28. 50. R 50. Justice Department’s search to find avenues to prosecute WikiLeaks founder Julian Julian founder WikiLeaks to prosecute avenues to find search Department’s Justice Assange). gon Papers on page A1). A1). on page Papers gon 49. Papers gates. Nearly Nearly gates. forty between passed Ellsberg years Papers at all. As the Pentagon in anot emerged thenquickly documents Papers published newspaper another enjoined, was newspaper that as And enjoined. networks efforts of WikiLeaks without anything approaching their magnitude. journalism Investigative anotherrose notchwith the Watergate reve- in 1974. The suc- resignation to NixonPresident lations that brought cess of the battle between the press and the government, but press and the government, battle between the turned all three down Ellsberg During oral arguments on t arguments oral During his efforts. Reports based on all or part of the Pentagon Papers Papers Reports based Pentagon of the his efforts. part on all or appeared in the Angeles Times tagon Papers. tagon Christian Science MonitorChristian Science C Y 29169_wlp_1-1 Sheet No. 18 Side A 06/07/2011 09:44:19 A 06/07/2011 18 Side Sheet No. 29169_wlp_1-1 29169_wlp_1-1 Sheet No. 18 Side B 06/07/2011 09:44:19 M K I k- C Y — New New is that “ [Vol. 1:1 [Vol. 56 ” , May 11, 1973, at at 11, 1973, , May s effect, IMES ’ T , N.Y. Well, the first thing you “ the sonofabitching thief is made the sonofabitching “ ~ ‡ ~ they stretched fromthey 1968 to 1973 Paper Cuts: An Industry Imperiled by Falling Prof- Imperiled An Industry Cuts: Paper , and never forced the courts to address the courts to address , and never forced — . In was. the early 1970s, a Bonn-basedIn I and costly, time consuming investigative and costly, investigative time consuming , Feb. 7, 2008, at C1 (discussing “major downsizing” and and downsizing” “major C1 (discussing at 7, 2008, , Feb. 54 Pentagon PapersPentagon Charges Are Dismissed; Byrne Judge Frees IMES T note 1, at 457. 457. 1, at note ock prices” the of recent recession). ) 5/9/2011 ) 11:01 AM he said, pausing for broadcaster he said, pausing , N.Y. supra ” , ELETE D , Richard Pérez-Peña, , Richard New York Times WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & OT In a 1973 conversation with Haldeman and Alexander In gets a Pulitzer Prize for stealing documents. a Pulitzer Prize for stealing gets N ” 55 Martin Arnold, Arnold, Martin O LLSBERG See, e.g. See President Nixon unwittingly voiced the postscript to the Pen- voiced NixonPresident unwittingly York Times efforts haveefforts been pared dramaticallyback across the media. At the same time, the explosion and of the of new the proliferation Internet journalisticmedia have dissipated and quasi-journalistic over efforts landscape.a broader, and irregular, unregulated In that environment, makes Amendment the First everyone and almost no one a publisher could in 1971, Ellsberg been in play the Had Internet responsible. have posted the entirety of Papers the Pentagon never himself, involved the the First Amendment protection of the press.the First Papers intagon one of his recorded Oval Office conversations. had been arrested,Ellsberg tried, and had the him charges against dismissed. its and Shrinking Ads and Shrinking its 54. 54. Haig, the President anguished Haig, that a national hero is and going to get off on a mistrial. And the 30 spurredCarl Bernstein and of aspiring legions reporters toward jour- flourished which themselves nalism schools and became academic orcornerstones, at least tuition-rich cows, cash for their universities. downturnThe economic of recent though, hasyears, taken a heavy news businesstoll on the BIERBAUER (D “grim “grim reports”financial national coming from institutions newspaper caused the “shrin by st tumbling and profits ing 55. Conduct’ Government ‘Improper Ellsberg and Assails Russo, A1 (indicatingA1 that district court a federal judge declared a inmistrial the prosecu- criminal Danieltionof the Ellsberg government after claimed it lost recorded telephone conversa- E tions obtained through wiretapping). 56. correspondent for Westinghouse Broadcasting. Toward the end of end the Toward Broadcasting. Westinghouse for correspondent Paris peace talks the lengthy cover the talks. Redmont to help Bernard Paris colleague joined my After of the numbing posturingfew days a observing and pretensions onof the diplomats and politicians asked both sides, Bernie howI he had endured on of reporting the talks.years have to realize, they all lie. all they Personal postscript 29169_wlp_1-1 Sheet No. 18 Side B 06/07/2011 09:44:19 B 06/07/2011 18 Side Sheet No. 29169_wlp_1-1