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ECON483B-SMeyerf93 - The Pentagon Papers Restrictions on...

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Unformatted text preview: The Pentagon Papers: Restrictions on the Freedom of the Press by the Government Stanley Meyer February 10, 1993 ECON 4838 Professors Kern & Carlip —\ The publishing of the Pentagon Papers and the subsequent trial E/m‘teo’ States M New Vark Times Ca in 1971 had a substantial impact on American politics. First of all. it brought to light many of the atrocities committed by the U.S. Government in the period during and leading up to American involvement in Vietnam. Also. during the criminal trial of Daniel Ellsberg, who leaked the Papers to the Times; the first incident of coverup by the Nixon administration was revealed. Furthermore. it sparked a national debate on the freedom of the press and the government's insistence Lg? secrecy in foreign policy and national security matters. This debate is the central concern of this paper. What restrictions, if any. should be placed on the freedom of the press, a liberty guaranteed by the Constitution? Should the government be given control of the media in a time of war? How would these questions be answered when formulating institutions and principles aimed at creating a just society? This paper will briefly outline the sequence of events preceding the Supreme Court decision and then analyze this issue within the context of models of justice presented by John Rawls, Henry Sidgwick. Robert Nozick. Richard Posner. and Bruce Ackerman. On June 17, 1967 U.S. Secretary of Defense Robert S. McNamara commissioned a top secret study to trace the history of United States involvement in Vietnam from World War ll until that time. A team of researchers from universities. the military. and the RAND corporation was organized to compile the report. Daniel Ellsberg, an employee of RAND and a contributor to the work, gained a copy of 38 of the full 47 volumes in February 1969. He delivered the Papers to 2 Senator William Fulbright. Chairman of the Foreign Relations Committee. in an attempt to convince Fulbright to schedule Congressional hearings on the matter. Fulbright never did, and in 1971 Ellsberg provided the New i’brk Time: with the 38 volumes. After three months of reviewing and analyzing the study, the Times published the first of a series of articles discussing the Pentagon Papers on June 13. Three days later. the Justice Department obtained a temporary restraining order to prevent further publication of the Papers on the grounds that, as a result of the printing. the nation‘s security would suffer irreparable harm. Due to the urgent nature of this issue, the Supreme Court heard and decided the case at a feverish pace. By a 6-3 judgment, the Court ruled on June 30 that "the government did not meet its burden of showing justification for the imposition of a prior restraint of expression“ (New York Times Co. v United States, 824). Justice Stewart argued. in a concurring opinion for the majority, that the government had failed to show that direct and irreparable damage to the nation and its people would surely result from the publishing of the documents. In a dissenting opinion, Justice Blackmun argued that the distribution of the Papers would result in the death of soldiers, the destruction of alliances, increased difficulty in &‘ /l?’7," Kat’s/3 negotiations. region a ‘ of war. and a delay in the release of prisoners of war. (tea/Curr! Later that same day, Ellsberg was indicted on two counts of theft and espionage. Eventually the charges would be dismissed. but not before they became a focal point of the Watergate conspiracy. in the government's attempt to undermine and slander Ellsberg‘s reputation and character. the so-cailed White ,5 j}; 5 11"“ 3 House "Plumbers" burglarized his psychiartist's office in search of his files. This unit was set up by President Nixon to stop the leaks of top secret and classified documents such as the Pentagon Papers (Salter. 1-4). These events illustrate the conflict between the liberty of the press guaranteed by the Bill of Rights and the government's responsibility to censor in the name of national security interests. The Founding Fathers believed that freedom of press is a fundamental right. so basic that it should be protected by the Constitution. in a free democracy, the press performs an essential function for the people and the government by serving as an objective reporter and as a means for exposing injustice. The government is entrusted with maintaining public order and the overall security of the ‘nation's people. Therefore, in certain circumstances, it may be imperative for the government to act solely with security interests in mind and not with those of individual liberties. For example, if during a war the United States is under attack, it may be necessary to sacrifice 55:ij some freedoms to successfull defend the natio. it would be detrimental to our 1 survival for the media to broadcast strategic military operations before they occurred. However. what if the nation was not under siege. but instead Americans abroad (for example, soldiers) were in danger? Again, the publishing of specific military strategy would put Americans in danger. The Pentagon Papers, however, detailed U.S. policy in Vietnam from World War ii until 1967, and were therefore already four years out of date. They did not explicitly state where and when the next military strike would occur in 1971. Rather, they outlined what our chief goals and objectives were in Vietnam in the 4 post-World War era. is the publishing of this information detrimental to the soldiers fighting there in 1971? The Supreme Court ruled that the government did not prove this to be true, not that it could not be proved to be true. it seems that the Court's decision left the opportunity open for the government to censor the media in the future if it presented a stronger case. This is the central issue of this paper. In what instances is the nation's security in such danger that the government may impose restrictions on certain Constitutional rights. namely the freedom of the press? And, more specifically, was the nation's security actually put in danger as a result of the publishing of the Pentagon Papers? This question will now be placed in the context of theories of justice with the goal of determining what solution provides the most justice. The ethical theory 'justice as fairness' outlined by John Rawls in fl,egry_of,_d,us_t~ice is based on the notion of assigning rights and principles in an initial situation called the original position. The original position is a hypothetical situation attained by erasing all knowledge of one's characteristics, such as wealth, talents, interests, social status, family upbringing, and even one's conception of the good. In this situation all participants are assumed to be equal because they do not know what set of attributes they will be given when this veil of ignorance is removed. It is at this time when all rights and duties are debated and determined in a joint effort (Rawls. 11-22). Rawls claims that from this original position, rational persons will argue in favor of two principles of justice. These principles are as follows: 5 1. Each person is to have an equal right to the most extensive total system of equal liberties compatible with a similar system of liberty for all (Rawls 250). 2. Social and economic inequalities are to be arranged so that they are both (a) to the greatest benefit of the least advantaged and (b) attached to offices and positions open to all under conditions of fair equality of opportunity (Rawls 83). It is the first principle that is of relevance to the issue at hand. The second principle will not come into play at all in this matter simply because the principles are serially ordered. The second principle will not be considered until the first principle is realized, and therefore it will never compromise the first principle. Rawls uses liberty of conscience as an example of how a system of equal liberties will be chosen from the original position. In this position, people will argue rationally and in their own self-interest. They do not know what ideological, religious, or moral beliefs they will hold once the veil is lifted. This uncertainty is heightened by the fact that the probability of having any particular belief is assumed to be unknown under the veil of ignorance. They would therefore wish to protect the rights of all beliefs with the idea that their convictions could be those in the minority. With self-interest in mind, a system of equal liberty of conscience is the only logical choice (Rawls 206). Now, the idea of equal liberty of conscience can be extended to that of equal liberty of speech and of press quite readily. Under the veil of ignorance, one does not know his political, ideological. or moral convictions, or if they are in the minority. The possibility that they are in 0) the minority forces one to argue for the liberty to express oneself freely and without harm. Equal freedom of the press follows along this same argument. The argument is further strengthened when one considers the potential advantages of the freedom of the press. The press provides the public with an account of the actions of the nation's people and its government. It also allows the public to express its views in media which can reach the public as a whole. This right would certainly be chosen under the veil of ignorance. The matter of the Pentagon Papers pertains to the question of what instances would make the public wish to place limits on this freedom. Rawls argues that individual liberties may be withheld only to prevent the violation of a greater liberty. in the instance of the Pentagon Papers. the greater liberty that is at stake is that of the common interest in public order and security. This liberty is one that poses a threat to all. The government is. accordingly, given the right to maintain public order within its own borders. This right would be chosen from the original position because it would enable the government to protect the interests of all citizens, whatever those interests may be. This idea can be extended onto foreign soil in wartime by interpreting public order as the protection of the citizens within or outside of its borders. Therefore. and this is most important, if it is evident that the common interests of all citizens are at stake. liberty of conscience (or the press) may be limited. The point here is that it must be perfectly certain that the common interests are in danger. Rawls is very clear: #3 OHM!“ szff‘f in holding that the consequences for the security of public order fiflfifizr. should not be merely possible or in certain cases even probable, but V" reasonably certain or imminent, there is again no implication of a particular philosophical theory. Rather this requirement expresses the high place which must be accorded to liberty of conscience and freedom of thought (Rawls 213). He states further: The parties in the constitutional convention, then. must choose a constitution that guarantees an equal liberty of conscience...limited only when such argument establishes a reasonably certain interference with the essentials of public order (Rawls 215). Apparently, the Supreme Court's decision of whether or not to censor the Times was based on the same criterion that Rawls argues would be used in the original position. The burden of proof rested with the government to show that the imminent danger was not merely probable, but certain. However, there was no evidence to guarantee that the lives of the soldiers in Vietnam would be at a greater risk as a direct result of the publishing of the Papers. The government had already placed the soldiers in danger by sending them there in the first place. The adversary had not received any new information that would suddenly enable it to destroy the American forces at will. Accordingly, a Rawlsian would argue that the 77'meswas correctly permitted to publish the Pentagon Papers. This rule exhibits ,f, ub/Cl) the high regard thaf individual liberties are placed in Rawls's theory and in a free, democratic society. While John Rawls's theory of justice provided a workable framework to examine the debate over the Pentagon Papers, Henry Sidgwick's utilitarian theory does not render an equally clear solution. Utilitarianism is a theory of justice based on maximizing the overall happiness, or utility, of society. Sidgwick explains, Utilitarianism is here meant the ethical theory, that the conduct which, under any given circumstances, is objectively right, is that which will produce the greatest amount of happiness on the whole; that is, taking into account all whose happiness is affected by the conduct (Sidgwick 227). The utilitarian is concerned with producing the greatest amount of overall well- being regardless of who receives that well-being. This theory assumes that by increasing total happiness, everyone in society is made better off. Sidgwick argues that just as one does not value one part of one's life more than any other, one will also not value his life more than that of any other human. He claims hat J/fl/J‘ 1,. ”r a 'plain man' would not accept a greater good for himself if it involveasacrifice on the part of another, without any counterbalancing gain to some other person. This line of reasoning, Sidgwick argues, supports the conclusion that everyone will prefer maximizing total happiness regardless of individual happiness (Sidgwick, 224-5). it is evident from this discussion that the utilitarian places value only on society's well-being as a whole and not on that of any single individual. Distributive aspects of well-being are not merely secondary considerations, they are not considerations at all. This applies not only to the distribution of goods. but also to the distribution of rights. Consequently, individual rights are not an integral or necessary part of a just society. Sidgwick would argue that if overall utility were increased at the expense of an individual right, it is just. There is no specific protection to safeguard the individual liberties we value so highly in our society. Applying this idea to the issue at hand, it seems evident that freedom of the press is not guaranteed. If the government can show that total utility is maximized by censoring the Times then such a solution is just. This is where the application of utilitarianism to a real solution becomes problematic. How can we cardinally measure the utility of any of the parties involved in the case? We would need to consider the happiness of the employees of the newspaper, the government, the readers of the newspaper, the American soldiers in Vietnam. the opposing soldiers in Vietnam, the opposing governments. and countless other parties. Such a measurement does not seem feasible as each party would surely claim that its utility is most affected by publishing the Papers (positively or negatively). And ,1 c furthermore. that by deciding in its favor (to publish or to censor). overall utility . would be maximized. is it possible to determine the quantity of utility that the press gains from publishing the papers? Or the quantity that the government ioses from allowing its secrets to be made public? Utilitarianism fails in this regard. if we are to assume that goods and liberty are scarce, conflicts over distribution will arise that require interpersonal comparisons. The answer to all controversial issues will rely on this nebulous idea of measuring utility. Furthermore, individual rights become subject to the will of others and are consequently no longer individual rights. Therefore, utilitarianism, as Sidgwi/ck presents it. provides no clear solution to 74,, 7‘44 [email/k the Pentagon Papers dilemma or as—a—Hweory of justice in general. The next theory to be considered is Robert Nozick‘s theory of justice based _l C) on libertarian theory in Anarchy. State. and Utop'a. He begins with a traditional state of nature and then presents the moral justification for the evolution of a minimal state based on libertarian constraints. The libertarian constraint originates from the belief that everyone is born with certain fundamental rights which may not be violated. By placing “side constraints” based on the rights of others on your actions, you will not be permitted to infringe on those rights when pursuing your goals. Side constrains upon actions reflect the underlying Kantian principle that individuals are ends and not merely means; they may not be sacrificed or used for the achieving of other ends without their consent (Nozick 31). Furthermore, society is comprised of individuals and only each individual‘s rights are relevant in determining social justice. There are only individual people, different individual people, with their own individual lives. Using one of these people for the benefit of others, uses him and benefits the others...To use a person in this way does not sufficiently respect and take account of the fact that he is a separate person, that his is the only life he has. He does not get some overbalancing good from his sacrifice, and no one is entitled to force this upon him - least of all a state or government that claims his allegiance (Nozick 33). There is no such thing as an overall social good, and therefore no one should be forced to be sacrificed for another. With this moral constraint guiding the system of justice, 3 minimal state evolves. The minimal state that Nozick speaks of is responsible for protecting the individual rights of all its citizens. The state protects against what he calls boundary crossings, a line that morally surrounds a person and determines the 11 individual's natural rights. Acting as the single “dominant protective association". the state has the task of prohibiting and determining compensation for any violation of these boundaries. Furthermore. a state may not wield any more power without acting immorally and in violation of the rights guaranteed to individuals by the libertarian constraint. Nozick says. "The minimal state is the most extensive state that can be justified. Any state more extensive violates people's rights" (Nozick 149). Therefore, according to this theory, the New York 77mes acted unjustly if publishing the Papers constituted a boundary crossing in violation of someone's natural rights. In that case, the state could intervene and prohibit the actions of 0‘1 pig/p the press by censoring. But, the issue is between the right of the Times to publish V/ij/ and the right of the U.S. Government to protect, and Nozick would argue that the _ r W _ A / 41/ state has no natural rights. While the state has been given the responsibility to Jim L’protect its citizens, it has not been accorded the right to infringe on individual II I {M ”(y/fl}; liberties in order to carry out this duty. The U.$. Government glaims that by _ M [613 . W @WM firestricting the rights of the press, they are acting in the interests of the country f d1 f’" awPWas a whole. But, Nozick is clear in his disdain for any talk of a public good or the g» M *0 general welfare of a country. He states it best in the preface to the text, "...the ) . ”fly/1}: Mate may not use its coercive apparatus...to prohibit activities to people for their V ”JET, ‘23 a ngood or protection" (Nozick ix). Therefore, Nozick’s state does not have the dzify/g/ ,/ %T to restrict the printing of the Pentagon Papers. I" Q ffwgyf' While it is obvious that the state can do nothing against the press in this it, « jX matter, may the soldiers each claim that their boundaries have been crossed? In 4d ’\ 12 Nozick's world. each individual soldier bears the responsibility not only to fight for his individual rights, but also to determine whether he should be fighting in the war at all. it is a soldier’s responsibility to determine if his side’s cause is just; if he finds the issue tangled, unclear or confusing, he may not shift the responsibility to leaders...
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