Thursday, May 31, 2018

The True Meaning of the Pentagon Papers

What if they had then decided to make political use of the documents by publishing them in the Chicago Tribune or the Manchester Union Leader? With the precedent of the Pentagon Papers decisions, it would have been impossible now to prevent the publication of those papers.

The Pentagon Papers had also been obtained in violation of the law, and Chief Justice Warren Burger had believed that there could be no right to publish stolen papers.

For the swing judges, the decision would be contingent upon a reading of the papers and a judgment as to whether they contained material that could endanger military operations or diplomacy or the lives of American agents abroad. The reading of the papers was utterly necessary to reaching a judgment.

Justice Oliver Wendell Holmes had famously declared: "Great cases, like hard cases, make bad law." And on that point, there has been no clearer example than the Pentagon Papers case.

In the case of the Pentagon Papers, the aim might have been merely to restrain the publication long enough so that agents of the government could review the papers.

There seemed to be a new urgency about getting those papers published, an urgency that had not been felt when the Times was carefully working on its dramatic release of the papers.

Is it anywhere taught in the schools of law that, in Snepp, the Supreme Court essentially repudiated its reasoning in the Pentagon Papers case? Has it been noticed that the reasoning in Snepp might even have overruled the decision in the classic case on "Prior restraints," Near v. Minnesota? For that matter, is it ever told in the law books-or the movies-that the Court, in the Pentagon Papers case, produced no law, but only a decision to withhold the injunction, though the judges could not even amass a majority to explain the reasons that would justify that judgment? Yet here we are: the Pentagon Papers case is celebrated as a landmark legal decision, and Steven Spielberg has now commemorated it on the big screen.

https://www.city-journal.org/html/true-meaning-pentagon-papers-15834.html 

1 comment:

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