tv [untitled] December 13, 2013 10:30pm-11:01pm EST
one who wants an in-depth look at one of the most famous supreme court cases of the past forty years james goodale joins us now from our new york studios. thank you for being with us or wife thank you for having me so let's start out with you before we get to the case and i'm wondering if you were general counsel for the new york times and a vice president as i recall of that well vice chairman are supposed to try to write a thank you the all the better and what what brought you to that what made you interested in newspapers in the first amendment and provoked you to brought you to be the guy who was arguing this case before the supreme court well i think that if you trace back what people are doing back to their childhood many times not all the times that many times there are connections and i was always interested in politics in the press when i was eight year old i used to put out my own newspaper that's what
you did when. many years ago or today you'd be on the net or something yeah but i split up my own newspaper write the headlines and so it's a lifelong. addiction you might say that's remarkable remarkable it's been. it's been forty years since the supreme court ruled six to three in the new york times case what made that case you call it a case for the ages. what makes that not hyperbole. well here's the way to think about the pentagon papers case without turning off your non lawyers or you know it's very simple what nixon tried to do is he tried to censor the new york times and later the washington post how did he try to censor them the sense of them by going into court and getting an order that you can't print you know it's. simple simple censorship what's interesting about it was the
only time in american history that ever happened. during a bet it's not going to happen. well now use the fancy term it's actually called prior restraint when i first heard that term when i worked with went to the new york times i don't know what the heck admit it but it just means it just means censorship and so it's a case for the ages because the only time we have the case and the press one the government lost and the tests or the rule of law or whatever you want to call it the supreme court laid down is very hard to meet almost virtually impossible which means that i don't think it's going to ever happen again and i don't think that caseload would be overruled it's fast i mean if you look at the arc of the history of this in seven hundred ninety eight the day that john adams signed into law the sedition acts he threw into jail ben benjamin franklin bought ben franklin's grandson published the war of war as i recall it was called whatever the newspaper
was who had written because the because bloch had written and a trial in which he called president john adams. toothless and balding i mean that literally that got him thrown in jail and got his newspaper taken away eighteen newspapers were shut down by john adams during that time and from then on and yeah we talk about very straight from then until the new york times where there are major any milestones or was this really a presidential case well no i mean this you know if it had never it had never happened before in a federal court there are some state courts maybe five or six over the period of time that you describe the did try to censor the press through prior restraints but in each case the newspapers disobey them so you know it really was the first time in history now you talk about putting all those papers in jail. you know lawyers
like to say things are different there's probably a difference between stopping the press and then after you print something as you describe it go and grab that person and throw him in jail is a fancy name for prior restraint and subsequent punishment i think where we are today is that i don't think we're going to have another censorship prior's think case. i'm worried about it and i say so in my book is that the government come around after publication and try to do it john adams did. that issue although the alias edition act disappeared has never been fully resolved it's. open issue but i think that you can't shut a paper down and john adams today couldn't do what he did unless he could show a clear and present danger. to the security of united states from what was said and if you criticize the government as you point out in your example that is going to meet that test well and then that was that was one of the major animating factors
of the election eight hundred and the reason why thomas jefferson referred to it as the revolution of eighteen is it was every puti ation that you know that part of adams presidency but you know well you know what. yeah go ahead but what happens is in most other countries in the world is what happened as you describe it because. any time that you criticize the government there's been a long tradition throughout the world that you might be subject to a jail sentence because you know it's unpatriotic but we're way past that in this country so i think that if you did have a case where. let's take the snowden case for example or or the. new york times published snowden right. the government directly go in and punish the new york times for doing it after publication but you know i don't think it's
going to happen and when it does happen it's going to be a real constitutional battle but i think the press will probably went well and that's that's curious how you think the your your case the new york times case pentagon papers case how that has changed american journalism over the last forty years and is there a straight line or even a. squiggly line between that and we can leaks and and what's not. did with you know working with glenn greenwald and the guardian in those release. you know what all glenn greenwald we all know he's a former blogger to whom snowden leaked right i mean he's the sort of the modern day new york times in a way so what is there a straight line between the pentagon papers case and what happened today i think the straight line goes like this that if you're going to publish something like the
snowden leaks. you'll probably go to the government beforehand and get a reaction to it before you publish and i think that's what greenwald did in fact in effect now. what's the straight line of pentagon papers case where you're not going to go to the government i don't know what you're going to do it's a gun that can go in the in stop you from doing so a major impact of the pentagon papers case is that people open has opened up publication because no one's going to be scared of being stopped the only thing they will worry about is whether they're after it will be a criminal process criminal prosecution so i that means in the leak world that you're going to get a lot of leaks out there and by the way i do you've got to get a lot more you argue and apropos of that you know to bring this to the to the current moment in time you argue in your book that president obama's r.
is arguably worse than richard nixon was when it comes to press freedoms is that you know with all this is because well first part of the question is am i accurately characterizing that and or do you want to. change that or put you know i think that yeah i think that's generally accurate we all remember this last summer . obama had a terrible summit with the press he's and i did war leakers than anybody in the history of the country and what i was worried about also other than that was that he was going to go after wiki leaks and assign what i talked about earlier in the program this criminal action and do it on a legal theory that was going to be terribly troublesome and nixon tried to do that that's to say criminally prosecute the new york times after publication after he lost the pentagon papers case he wanted two bites out of the apple and he had
a grand jury going for eighteen months up in boston but it gave up and what is a bomb a done he's convening a grand jury to indict a song which is very much what it and i say if obama goes forward that. would that he'll be worse than nixon i think he's given a nixon a pretty good battle anyway but that was my major point now is since then in the last ten days the justice department is floated a statement in which says that may not prosecute and i like to think my book had some influence on that decision but who knows i agree and i'm wondering if you think. obama being worse than nixon and to say it badly is a function of it being president obama at the man or the president or even the party or is it a function of the times is this is this how badly nine eleven has changed america
we saw the bush administration go reactive. you know you could say yes to a lot of your options but i think the last one. is the most important we're in a nine eleven. post nine eleven syndrome still you know my goodness sometimes does that happen but no one wants to take a stab that could be construed later and is giving some scope to terrorists with their. act and do something like nine eleven because you then get blamed for being too generous with respect let's say the press with respect to eavesdropping. if you don't take a hard line and then there is another nine eleven you get blamed for not taking the hard line so the hard line. attitude is what's driving obama i believe yeah although that didn't happen to the bush administration i mean dick
cheney was put in charge of the counterterrorism task force when they became when he became vice president they never met until a week before nine eleven and they had been warned loudly about bin ladin that he was coming to get us so you know some of the blame never materialized to it seems like oh my god. you know they're afraid of something is not happening anyhow i want to get into this there's this whole issue of you know what how the times in ellsberg time and when you were when you were practicing law might be different from now beyond just the level of you know comparing presidents to presidents if we can get into that right after this break stick around for a second more more of tonight's conversations with great minds with james seemed good details after the break.
i'm. a guy that i think. kind of can. do and bank all that. money and have a family stick for a politician right the body. just to but it's a day that i. think. i would rather i asked questions to people in positions of power instead of speaking on their behalf and that's why you can find my show larry king now right here on r.t.
question or. i'll go back to conversations of great minds i'm speaking with james c. goodale former general counsel for the new york times and author of the new book fighting for the press inside story of the pentagon papers and other battles and we mention is it as we will hit the break there that i want to get into how the times me have changed beyond just nine eleven this is what jay ellsberg had to say on this program oh about six eight months ago areas. do you see a qualitative difference between what you did and what edward snowden did yes regrettably it's a different country it was a different country i had every reason to expect that eventually i'd be out on bail
as i was actually the judge put me out on personal recognizance but with a fifty thousand dollars bond if i didn't show up for trial and that's for the next two years including my trial which less than ultimately four and a half months in court i was free to comment on the case just say while i had done what i had done and what the paper. today so assuming that what ellsberg was describing was at least a reasonable environment in which to be practicing journalism how do we recapture that if we've become so unreasonable. well i think that you recaptured with courage . you know this nine eleven post syndrome at some point is going to go away but it won't be tomorrow won't be next year and the only way that you're going to recapture the spirit is to be highly courageous now with respect to the times. and my tarm i thought it was courageous that's what i say in in the book and of
course sometimes had a lot more money than say the new york times today has. the new york times. it is getting his courage back but it did hold a story that is similar to snowden's for a year. for which james rise and finally got the pulitzer prize it was all about the wiretapping done by the n.s.a. and one doesn't like to see those things happen because you're but you buy out of the pressure of the times and you have to think about press freedom as something that's goes on a straight line and that doesn't when we get in bad times for the nation name we now you know goes down it should be it should be the same all the all the time. where do you were do we draw the line in terms of. what can be released i mean chelsea manning did
a huge data dump the most famous part was that video clip and one could argue maybe the video clip of the u.s. chopper pilots killing the the reuters journalists and the other locals would have been enough you know but it was a huge data dump snowden has released large amounts to wiki leaks released recently releasing large amounts you talked about sort of the the atomic bomb the world war two threshold as it were but the the germans were working on a bomb the idea that if you had two pieces of highly enriched uranium and you threw them together with some conventional explosives was not a secret at that point in time it was to do was enriching uranium enough to be able to do it they were they were just behind us i mean at what point do we say here's the tripwire where this is something that really shouldn't be revealed and has anything like that come out in our lifetimes. well let me
answer the second question first same thing come out like that in our lifetime. well you know i do think the atomic bomb is an is an example you know it may be for example the secret with respect to the raid on bin laden that killed him. you wouldn't want that that released so there are some examples but i think that. in our time when we look at the. allegations of breaches of national security when you look at them closely they never turn out to be anything now we talk about chelsea manning. he did breached asked security with that huge data dump i mean it was millions and millions of of this and that you know i went through maybe the only person in america his trial and tried to the best i could see whether he in fact it damaged nasa security so i think that he
had so i think that in real terms. there aren't going to be many cases that come up against this exception but i think we always have to admit there is an exception because we don't want to be arrogant about the first amendment and say that it can never be beaten down but in the real world it's very hard to prove that national security trumps the first amendment i'm curious your thoughts on shield laws that would protect the first amendment or protect acts of journalism there is yeah well go ahead. yeah well what is the shield law we had one of the best ones in here and i'm talking from new york city here in new york state and what it what does it do it means when there is a source for a story a reporter does want to disclose a reporter doesn't have to do disclose it and that's pretty much the rule in the
states but in the federal courts you know we have state courts we have federal courts. in the federal courts there is no such statute i think there should be one . there was a pretty good one pile the way hang around before obama came in and he messed it up by putting a national security exception in it and i think we will have some point on that it may not be tomorrow. i've. created a distinction perhaps only in my own mind to get your take on between journalists and acts of journalism it seems that if you're trying to craft a shield law or anything that has to do with journalism and you end up trying to define who is a journalist and this is what dianne feinstein has been trying to do in my. you you are dancing all over and around to maybe right through the first amendment saying well this person has to principle or work for an organization or principally you
know these kind of thing whereas if you instead say what what the first about tax is not journalists but acts of journalism so it could be anybody who and it could be something as simple as a twitter you know or as sophisticated as a book or you know publication in a newspaper if it's an act of journalism it's protected your thoughts on that distinction. well i think that's a pretty good argument i think you have to put you down in washington you may be there already but in the senate. and in the senate and argue it out i like your thinking about it i want to talk about dianne feinstein and she. is a little conservative on these issues and she's been messing shall i say with a bill that would protect reporters a shield law federal shield law and she's got an interesting provision in it where
you know you have to work for standard paper and you sort of have to be a regular jerk a. that's which leaves a lot of people out today because you have bloggers you have grand greenwald so for the and so on and then she has a provision in there but the court is free to decide whether a particular person is a journalist who doesn't fit that first category you know and she's almost done in a way thinking about it with you in a sense what you've done. your language would be a little better but she's got this interesting idea if the judge feels as you do he can protect an act of journalism and i think that's the best part of the work she's done in this all year because she's a real bear on this sort of stuff well unfortunately though leaving it up to a judge you know this is almost that prior restraint thing you know i mean it's like you're you're going to the judge to find out if this person is going to be determined innocent or guilty and and well i think you know good bye by defining
them as you're referring. now you'd prefer not to go to a judge. but i'd have some sympathy for the point of view that the technology has changed the world so much this is a very difficult question to deal with and so well that would accept journalism but i buy your i buy your argument ok thank you i mean i in fact i could even extend that and say you know is this for example when you look at what chelsea manning did was that an act of journalism or was it an act of treason you know it's you know what kind of kind of behavior was it and i and all the way i would assert that it was an act of journalism. because there was no demonstration of an attempt to destroy your country in fact she was doing it for the most noble reasons it seems. but well it's important to distinguish distinguish between ask. and a communication and what she did she did not commit espionage where is the
espionage she would have had to take everything that she had. and zipped it over to the russians you know by e-mail. but she didn't do that right she gave it to a sign who i think it's a journalist. so you've got to separate the two out and then you go back and say what she was charged to file in the espionage act and say hey you know our laws are really screwed up in this area and we really ought to think of leaking in some respects as a responsible act that doesn't get caught as being asked or doesn't make any sense and i would think with respect to. chelsea manning that case may be a little more difficult to make the navy snowden's you know stones becoming euro if you believe that yeah i do and and i think maybe one of the reasons is for example recently seymour hersh presented a story the washington post showing proving demonstrating that the obama
administration was cherry picking intelligence with regard to chemical weapons in syria and the post decided not to publish it they said no thanks and seymour hersh's went to the world and said look at this they don't want to publish. is the is the a traditional media still serving that role upholding the government in the fourth estate holding the government in check. they are being challenged severely by the glenn greenwald's of the world glenn greenwald has got twenty to thirty million or a million dollars to start his own. online newspaper if you will or whatever you want to call it and. the online types are going to win this battle that say it's an intramural one will who's better the sabs and papers or the new guys because establishment papers as i said a few minutes ago. you know no necessarily have the same courage.
that they had x. years ago i can imagine. the washington post doing that in the era of ben bradlee. passing on that story and they certainly didn't pass on water. i certainly did not pass on water and they certainly did not pass on the pentagon papers i mean and washington post. you know reputation and histories is very good with respect to these type of stories because you don't want to get blown away by someone who comes in and says you publish that you're going to damage nasa security because you know it never turns how they should to there you go and see goodell to think carefully that the book is fighting for the press the inside story of the pentagon papers and other battles thanks so much for being with us tonight sir. here in tire welcome to see this and other conversations the great minds go to conversations great minds.
and that's the way it is the night friday december thirteenth two thousand and thirteen don't forget he begins with you get out there get active you know. i would rather ask questions to people in positions of power instead of speaking on their behalf and that's why you can find my show larry king now right here on r.t. question for.
i know c.n.n. the m s n b c fox news have taken some not slightly but the fact is i admire their commitment to cover all sides of the story just in case one of them happens to be accurate. that was funny but it's close and for the truth and i think. it's because one full attention and the mainstream media work side by side the joke is actually on here.
today on larry king. cobra two thank you that's what airbrush will do for you what other field other than music particularly country music could you get away with saying hey look i'm having children and i want to just be with them for fourteen years and they say we'll be here when you get back plus i don't know if you know so not but i don't have these talks with everybody you're one of the rare ones that's all ahead on larry king now. larry king now or over a c.b.s. studios in the valley in california our special guest is god brooks he is the biggest selling country artist in history and he has a new.