WikiLeaks, The Pentagon Papers, and Vermont Law School

If you have not heard of WikiLeaks, you must be living under a rock! WikiLeaks, founded in 2006 by the Australian Julian Assange, is a virtual organization, which releases classified documents, most recently targeting US foreign policy decisions and diplomacy.  Depending on your point of view, WikiLeaks is dedicated either to chaos and anarchy or democracy and transparency.

The brouhaha surrounding WikiLeaks reminds me of the now 40 year-old Pentagon Papers case. The Pentagon Papers were, for those who need a refresher, a top-secret study of the United States involvement in Vietnam during the years 1945-1967. Daniel Ellsberg, who had authorized access to the Papers, secretly photocopied the forty-seven volume study, and distributed it to the New York Times, the Washington Post, and later, to other newspapers.  The Times then began publication of sections of the 7,000 page report, leading to any array of law suits, most immediately against the New York Times, with the Government seeking an injunction to prohibit further publication.

Vermont Law School’s own Judge James L. Oakes (after whom Oakes Hall is named) published an essay “Judge Gurfein and the Pentagon Papers” 2 Cardozo Law Review 5-14, in which he describes the injunction case.  Judge Gurfein who, at that point, had only been a District Court judge for a several days, refused to enjoin the Times publication of the papers.

With the 2d Circuit sitting Judge Oakes (in his own first case on the Second Circuit), along with Judges Irving Kaufman, and Wilfred Murray, wrote a very brief dissent which would have upheld Judge Gurfein’s decision, 444 F.2d 544. On appeal to the Supreme Court, the now famous case of New York Times Co. v. United States, 403 U.S. 713 (1971) pitted, among other things, the Executive’s right to secrecy in the name of national security, against the 1st Amendment freedom of the press. In a per curiam decision (decided 6 to 3, with four concurrences!), the court ruled for the Times, holding that the Government had not met the burden of justifying a prior restraint.

Judge Oakes provides more of the history in the first Kenneth Murray lecture at the University of Michigan, published as “The Doctrine of Prior Restraint since the Pentagon Papers”  15 Univ. Mich Jl. of Law Reform 497-522 (1982).
Quite interesting is Vermont Law School’s connection to the Pentagon Papers, by way of Judge Oakes’s papers in our archives, which contain inter alia, his memoranda and notes on the Pentagon Papers case.  In his essay, “Five from the Bench and Five from the Bar,” appearing in A Tribute to James L. Oakes and Guide to the Oakes Papers (KF373.O24 J84 2007), Judge Oakes recounts his most famous cases, among them the Pentagon Papers case. Even the most serious court cases can contain moments of humor and irony.  In the essay, Judge Oakes remarks: “I always thought it amusing that the law clerks, who had no security clearance whatsoever, could be perusing the record, supposedly highly classified, under the watchful eyes of admirals, generals, and assorted other military.”

To be continued…

Written by CAY + HEC