Is Obama following in Nixon's footsteps by going after WikiLeaks?
Julian Assange faces a US grand jury investigation for his releases of information through WikiLeaks. Are there parallels between RIchard Nixon's legal action against The New York Times for publishing the Pentagon Papers?
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Sheehan's wife, Susan, a reporter for The New Yorker, also was named in the government's case before the grand jury. A Who's Who of Boston-based reporters and anti-war activists were then forced to testify, including Times reporter David Halberstam, anti-war activists Noam Chomsky, Howard Zinn, and two senatorial aides to Mike Gravel and Ted Kennedy. Harvard Professor Samuel Popkin would even serve a week in jail for refusing to testify as to his sources, citing the First Amendment right to keep them confidential.Skip to next paragraph
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The grand jury investigation lasted more than a year and the Times was so sure Sheehan would be indicted that a statement was drawn up for Times Publisher Arthur Sulzberger that read in part, "The indictment of Neil Sheehan for doing his job as a reporter strikes not just at one man and one newspaper but at the whole institution of the press of the United States. In deciding to seek Mr. Sheehan's indictment, the administration in effect has challenged the right of free newspapers to search out and publish essential information without harassment and intimidation."
But thanks to the efforts of many First Amendment lawyers and the witnesses' outright refusal to testify as to their knowledge of the Pentagon Papers, this statement never had to be issued. The government was eventually forced to dissolve the grand jury once it became clear it would be impossible to indict.
The same scene is playing out in a grand jury room in Alexandria today. Julian Assange is being investigated for conspiracy to commit espionage for allegedly speaking with the purported leaker, Bradley Manning. Chat logs between Manning and FBI informant Adrian Lamo suggest the two did converse at one point, and if the logs are to be believed, they may have talked about the WikiLeaks disclosures.
This, however, should not matter. Journalists communicate with sources all the time, regularly persuading them to leak. The First Amendment has long protected the transmission of information to journalists—even stolen information—as long as the journalist did not help commit the theft. Just as it protected Neil Sheehan in receiving the Pentagon Papers, it protects Julian Assange in receiving the WikiLeaks files, and neither should have to worry about being indicted for, as Sulzberger said, "doing their job as a reporter."
If an indictment and conviction of Assange were ever to be achieved, the courtroom scenes from that grand jury room 40 years ago could become commonplace. Not only would reporters be hauled in and questioned ("Did you write this to hurt U.S. foreign policy?" "Are you anti-war?"), but other reporters, not even assigned to the story, would be dragged in as well. Halberstam and the like did not have possession of the Pentagon Papers, but they were still subpoenaed just to find out if they knew who had them.
Charging Julian Assange with "conspiracy to commit espionage" would effectively be setting a precedent with a charge that more accurately could be characterized as "conspiracy to commit journalism."
James C. Goodale, counsel for the The New York Times in the Pentagon Papers case, is writing a book, Fighting for the Press: Why the Pentagon Papers Case Still Matters, and is co-producer of the TV program Digital Age on Channel 25 in New York City.