Government and Press
The Papers & The Papers: An Account of the Legal and Political Battle over the Pentagon Papers.
by Sanford J. Ungar.
Dutton. 319 pp. $7.95.
A free press cannot be a patriotic press. In George Orwell’s words, “freedom of the press, if it means anything at all, means freedom to criticize and oppose.” John F. Kennedy said much the same thing, from a rather different angle of observation: “Always remember that their [the newspapers’] interests and ours ultimately conflict.” Both were right. There is no such thing in a democratic country as a newspaper whose guiding principle is to support the policies of whatever government happens to have been elected. The major goals of both the New York Times and the Chicago Tribune, aside from making money, are (a) to score a clean news beat and (b) to discredit politicians who fail to follow the advice of their publishers and editors. There is room for argument as to which goal is dominant. Whether the Times (or the Washington Post) would have printed the Pentagon Papers if they had revealed sound decisions, reached after grave and wise deliberation, is a question on which speculation is interesting, but unprofitable. (It is fairly safe to say that, if the Pentagon Papers had fit that description, the Times would have been most unlikely to win a Pulitzer prize for printing them.) But when both these goals can be achieved at a single stroke, other considerations would have to be of extraordinary weight to tilt the scale against publication.
Thus, there was nothing surprising in the great confrontation between government and press in the affair of the Pentagon Papers. What is surprising, given the porosity of the executive branch’s system of keeping secrets, is that something like it had not happened long before. Nor were the revelations really startling: most of what was in the documents was already known or surmised.
Nevertheless, there is much of interest in Mr. Ungar’s story. For one thing, there is the sheer size of the security breach—47 fat volumes, running to more than 7,000 pages, each and every page classified “Top Secret.” There were the majesty and pomp of the triumph which the Times and Post awarded themselves for having saved the Republic. Most engrossing of all, Mr. Ungar has given us an unusual and valuable clinical study of the policymaking process within the governmental hierarchies of great newspapers, with Executive Editors, Managing Editors, and Bureau Chiefs, clarissimi, spectabiles, and illustres, engaging sometimes in shouting matches, sometimes in intrigues of Byzantine intricacy, pushing and pulling the Emperor this way and that. (Neither Arthur Ochs Sulzberger nor Katharine Graham cuts a very impressive figure in Mr. Ungar’s account.)
The tale is not ill told. Mr. Ungar has really tried to tell it accurately and fairly. He does not, of course, succeed very well. A reporter for the Post, he has the political coloration appropriate to his environment; no matter how valiantly he tries, he can no more write objectively about such limbs of Satan as the President and Vice President, the Attorney General and the Chief Justice, than an arctic fox can turn gray in winter. Likewise, he knows a great many facts that aren’t. He states flatly, for example, that President Kennedy’s approval of a “defensive security alliance” with the Diem government in South Vietnam was “a flagrant—albeit secret—violation of the Geneva Accords”—a statement which overlooks, among other things, the fact that neither the United States nor South Vietnam was a signatory to those Accords. Like many or most representatives of the news media, he sees no significant difference between Mr. Agnew’s free exercise of his First-Amendment rights and governmental suppression of hostile comment. The press is, in fact, as morbidly sensitive to criticism by Messrs. Nixon and Agnew as those politicians are to unkind treatment by the media. The reaction of a Times editor to one of Mr. Agnew’s speeches (referred to as “tirades” by Mr. Ungar) is that of a medieval Pope to a sermon by Bishop Pike—incredulity, followed by apoplexy, followed by anathema maranatha, an auto-da-fé, and a new entry in the Index Librorum Prohibitorum. (Mr. Ungar reveals in a guileless aside that “there was a strong body of opinion within the American press that repeatedly argued that Agnew should be ignored,” presumably by reporting his orations on page 17, or not at all.) But oftener than not Mr. Ungar honestly tries; he actually concedes, for instance, that the administration may have had motives besides inveterate hatred of the First Amendment for trying to enjoin the publication of the papers, or some of them. Likewise, he delineates very fairly the odd character of Daniel Ellsberg.1 If I cannot give him better than a C+ for objectivity, I gladly award him an A for effort. Indeed, at times he has included more facts than are requisite to an understanding of his chronicle—e.g., a biographical sketch of the Honorable Maurice Gravel (D., Alaska), possibly the most erratic member of Congress since the Honorable Marion A. Zioncheck (D., Washington). But almost all of his details are at least entertaining; the book is excellent light reading.
If some pestiferous little Peterkin inquires, “But what good came of it at last?,” old Kaspar can only repeat the general editorial opinion that “’twas a famous victory.” The publication caused no visible harm to the security of the United States; nor, on the other hand, did it contribute very much to public enlightenment. Those who were against the war were no more strongly opposed to it after than before; those who favored it, or at least Mr. Nixon’s handling of it, were of the same opinion still; those who were of two minds remained in that condition. The question of the constitutionality of prior restraints on publication was not greatly clarified: although all nine Justices of the Supreme Court hastily composed separate and lengthy opinions, the actual holding of the Court was only that the government had not carried its “heavy burden of showing justification” for prior restraint of publication. None of the opinions made clear why that burden should be heavier than it is when the government seeks to inflict punishment for an unauthorized publication. It is true that in England the liberty of unlicensed printing is much older than the idea that men should be free to say what they think without fear of punishment. But that seems to be an accident of history rather than a deliberate decision on a matter of high principle. When the Parliament of 1695 allowed the Licensing Act to expire, it did not do so because the members were convinced by the arguments of Milton and Locke; the reenacting measure died in the closing hours of a turbulent session simply because the Lords and Commons could not find time to agree on the details of reform of the administrative procedures of licensing.
In short, the great case did not settle very much. But it raised, if only by implication, some important and difficult problems which Mr. Ungar either did not believe it was within the province of a reporter to discuss or (perhaps more probably) did not perceive. Here are a few of them:
- What sort of reasonable balance can be struck between the undoubted right and duty of the executive branch (asserted by every President from Washington to Nixon) to keep some matters secret in the national interest, and the public interest in checking the propensity of bureaucrats, of high and low degree, to keep almost everything secret, whether to avoid exposure of their own folly and venality, or simply out of force of habit? This problem was raised more than once in George Washington’s administration; he found, for example, that “a just regard to the Constitution and to the duty of my office . . . forbids a compliance” with a Congressional request for documents bearing on the negotiation of a treaty with England. But no solution has been devised in one hundred and eighty years, and maybe none is imaginable. It has been suggested that the President and/or Congress should provide that every secret document shall automatically be declassified after a fairly short period unless the government can persuade an impartial board (but who would sit on it?) that continued secrecy is required in the interest of national security. But national security is not the only consideration justifying secrecy. If we assume, as I think we must, that there is justification for the maintenance of some sort of “loyalty-security” files on office-holders and office-seekers, it is obvious that there are good reasons, having nothing to do with the safety of the nation, for not publishing those files. Few, if any, liberals objected when President Truman forbade the furnishing of such information to congressional committees.
- A consideration which was present in the Pentagon-Papers case, and which has been overlooked by Mr. Ungar and almost everybody else, is the desirability of permitting subordinate functionaries to express unpopular opinions without fear of being dragooned or blacklisted by politicians and polemicists on the other side of the question. The official who makes a policy decision ought, of course, to be answerable for it to Congress and the public; but people like William P. Bundy (an Assistant Secretary of State in the Johnson administration) ought to be free to give their honest advice, however wrong, to their superiors without fear of being vilified by people like Richard Falk or excluded from academic employment in the Ivy League. Bundy happens to be solvent and well-connected; as much cannot be said for most career civil servants. As a medium-level civil servant, I wrote some memoranda in 1952 and 1953 which I might have phrased with much more caution, not to say cowardice, if I had thought they were likely to be read by Senator Joe McCarthy. (I prefer to think I wouldn’t have, but I’m not sure I was all that brave.) Future cabinet officers are likely to think several times before they order the compilation of anything like the Pentagon Papers—which will be a great loss to historians and may lessen the ability of future governments to profit from the mistakes of their predecessors.
- Why should the decision about what the public shall be told (in the form of news or editorial opinion, or a mixture of the two) be left to the discretion of a few rich men and women who happen to inherit newspapers and television stations? Here, I am afraid, I can think of no better method of insuring that most opinions will find expression. Some publishers, to be sure, are conservative or reactionary, but about as many are Social-Register socialists, hot for any reform which is not likely to endanger their own fortunes or power.
- One more very old-fashioned, and very unfashionable, consideration: is it right for a man to betray a trust, to break his word and break the law, because he believes that doing so will serve a purpose which he thinks good? Why should Daniel Ellsberg be held in greater honor than Otto Otepka, who was fired from the State Department for passing to the Senate Committee on Internal Security classified “loyalty-security” documents on employees whom he thought subversive? (Mr. Ungar makes only one very incidental allusion to Otepka.) A distressing number of liberals, if the question occurred to them at all, would answer that Ellsberg was right because his purpose was good, and Otepka was wrong because his purpose was bad. Certainly Otepka had no defenders on either the Times or the Post, both of which censured his conduct in the strongest terms. But they might have said to Ellsberg, and to all the other self-appointed saviors, from those who block traffic to those who murder harmless tourists in airports, who are sure that the rightness of their convictions puts them above both law and conventional morality, as well as to Otepka, what Oliver Cromwell said to the zealots of another age: “I beseech you, in the bowels of Christ, think it possible you may be mistaken.”
1 See his Papers on the War, Simon & Schuster, 309 pp., $8.95.