By William H. Freivogel
The most outstanding example of the press and the courts acting together to check the abuse of presidential power is the Pentagon Papers.
Congress had fallen down on its oversight during when on Aug. 7, 1964 it approved the Gulf of Tonkin resolution authorizing the Vietnam War. The resolution was based on murky — and it turned out false — assertions that North Vietnamese torpedo boats had twice attacked the USS Maddox off the coast of Vietnam.
As the war dragged on and tens of thousands of men died, the press brought the bloody reality of combat to the nightly news, sowing seeds of doubt in Walter Cronkite and the American people. Arkansas Sen. J. William Fulbright held high-profile hearings later in the war, but Congress did not withdraw its authorization.
Daniel Ellsberg, a disaffected former military analyst and defense expert at Rand Corp., leaked a 47-volume top-secret history of the Vietnam War — the Pentagon Papers — to the New York Times. Publication began in the spring of 1971. The documents showed presidents Lyndon B. Johnson and Richard M. Nixon had lied to the American people and Congress about important aspects of the war, puncturing the myth that voters had to defer to a president’s judgment because he surely knew more than the ordinary citizen. The president knew more, all right, but the additional information was a reason not to fight the war instead of a reason to fight.
Nixon tried to block publication, partly because National Security Advisor Henry Kissinger told him voters would no longer defer to presidents if they saw presidents had lied to them. But the courts backed the press and said the government couldn’t stop publication of national security secrets unless there was the threat of “direct, immediate, and irreparable damager” to national security.
Justice Potter Stewart explained the important check on presidential power that the press and people provide, especially when Congress does not stand up to the president. Stewart wrote:
“In the governmental structure created by our Constitution, the Executive is endowed with enormous power in the two related areas of national defense and international relations. This power, largely unchecked by the Legislative and Judicial branches, has been pressed to the very hilt since the advent of the nuclear missile age.…
“In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry — in an informed and critical public opinion which alone can here protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For, without an informed and free press, there cannot be an enlightened people.”
Erwin Griswold — the solicitor general who had filed a secret brief with the Supreme Court claiming there were more than a dozen drop-dead secrets in the Pentagon Papers — later wrote that none of the secrets caused the United States harm once disclosed.
One similarity between the Pentagon Papers and the Trump/Russia stories is that the source of the leaks had an intelligence backgrounds. When intelligence sources provide journalists with damaging secrets and the courts protect the press’ publication of those secrets, a president can find himself in a lonely place.
A year later, the mysterious “Deep Throat” began meeting with Bob Woodward in an underground garage in Washington. Deep Throat turned out to be Mark Felt, the associate director of the FBI whom Nixon had passed over the lead the agency after J. Edgar Hoover’s death.
The Washington Post stories stirred the professional curiosity of U.S. District Judge John Sirica, who applied pressure to induce Watergate burglars to confess to White House connections.
Later, when a special prosecutor sought the secret tapes of White House conversations, the Supreme Court forced their release and Nixon left office a few days later. So it was a one-two punch by the press and the judiciary that forced Nixon from office.
There was one other important ingredient to the Watergate scandal. Congress fulfilled its role in checks and balances with the important Senate Watergate hearings and a move toward impeachment.
A similarity between Watergate and the Trump situation is that Watergate involved a burglary of the Democratic National Committee headquarters; the Russian hacks were a modern-day cyber-theft of DNC documents.
Jason Blair and Judith Miller
The Sept. 11, 2001 attacks, the D.C. sniper murders and the anthrax poisonings discredited the press’ use of unnamed sources and tested the press’ spine for checking presidential power.
New York Times reporter Jason Blair built his fabricated stories about the sniper on fictitious confidential sources. Judith Miller of the Times used real but inaccurate confidential sources in government to help President George W. Bush beat the drum for a war against Iraq. The Times also ran a column falsely implicating scientist Steven Hatfill in the anthrax poisonings.
Compounding the problem, the press as a whole failed to scrutinize the president’s justification for the war in Iraq, a justification found to be false when no weapons of mass destruction were found.
With Congress, the courts and the press all on the sidelines, the unchecked president took America into a pre-emptive war against Iraq based on the danger of weapons of mass destruction that didn’t exist.
After the fall of Baghdad, as the insurgency grew in Iraq, Ambassador Joseph Wilson disclosed in a New York Times op-ed that the government knew before the war that Saddam Hussein had not bought uranium from Niger for a bomb – despite Bush’s claims to the contrary in his State of the Union speech. I. Lewis “Scooter” Libby, Cheney’s chief of staff, struck back at Wilson by leaking the secret that his wife, Valerie Plame, was an uncover CIA agent — an effort to force the whistleblower’s family to pay a price for telling the truth.
Guantanamo and the Geneva Conventions
The courts and the press reasserted their power to check Bush in the years after the war.
The Washington Post disclosed that the CIA was using secret “black” prisons in foreign countries to hold terrorism suspects and apply “enhanced interrogation techniques,” such as waterboarding. The New York Times disclosed what appeared to be illegal and unconstitutional wiretaps of American citizens conducted without warrants. Both stories relied on unnamed sources.
In a Dec. 5, 2005 meeting at the White House, President Bush and his top advisers warned Times publisher Arthur Sulzberger and top editors that they would have “blood on their hands” if the disclosure of the secret wiretaps helped al-Qaida carry out another attack on U.S. soil. The Times published despite the threat.
Meanwhile, the Supreme Court rejected the Bush administration’s assertion that the courts could not review the president’s detention of al-Qaida prisoners at Guantanamo Bay.
The Supreme Court found that even the Guantanamo prisoners could go to federal court. In addition, they were entitled to the rudiments of due process, such as the opportunity to hear and refute charges against them.
The legal argument that Trump’s lawyers made in defense of the president’s ban on travel from seven predominantly Muslim nations was similar to the Bush claim about the Guantanamo prisoners. Trump maintained that the courts had no business reviewing his executive order because he had absolute power in arena of immigration and national security.
The 9th U.S. Circuit Court of Appeals decision rejecting Trump’s argument cited the Supreme Court’s earlier decisions against Bush’s claim of absolute power at Guantanamo Bay. It noted that the Supreme Court had found the “political branches” lack “the power to switch the Constitution on or off at will.”
Trump’s warning that the judges would deserve the blame if the delay of his order resulted in a terrorist attack was reminiscent of Bush’s warning that the Times would have blood on its hands if it disclosed the NSA wiretapping.
Snowden and the NSA
The most recent example of the press checking the power of a president was Edward Snowden’s leak of information about the extent of NSA spying on Americans. Snowden, who worked for the defense contractor Booz Allen, leaked information about the NSA’s collection of metadata on the telephones calls of all Americans and about the PRISM program collecting internet content.
Initially, the NSA claimed the programs had been valuable in stopping scores of terrorist attacks. But it turned out that there was no proof that the information had stopped a single attack.
The Obama administration sought to prosecute Snowden for violating the Espionage Act, but he obtained asylum in Russia. Meanwhile, Obama signed a reform law that put the NSA program on a firmer legal footing by having private phone companies collect the metadata instead of the government.
One characteristic common among confidential source stories is that the government almost always cries wolf about the dire consequences of publication.
Nixon’s solicitor general wrote a brief of drop-dead secrets that would cost tens of thousands of lives. The solicitor general later said there was no harm.
Bush warned Times’ editors they would have blood on their hands, but there was no attack resulting from the publication of NSA wiretapping.
And the Obama administration claimed Snowden’s disclosures would end surveillance techniques that had stopped scores of attacks. But they later admitted there was no proof that U.S. attacks had been stopped.
One government warning that proved prescient was Kissinger’s to Nixon – If the people knew from the Pentagon Papers that presidents lied about the Vietnam War, they might not believe presidents in the future.
The people found out from the press and they have been skeptical of presidents ever since.