Let historians not record that when America was the most powerful nation in the world we passed on the other side of the road and allowed the last hopes for peace and freedom of millions of people to be suffocated by the forces of totalitarianism.*
—PRESIDENT RICHARD NIXON
The Vietnam War Under JFK and LBJ: Liberalization and Vacillation on the Freedom of Speech
Nearly two decades had passed since the end of the Second World War and the start of the Cold War. Most Americans regarded the Soviet Union and communism as “a threat to America and a menace to its principles.”1 The administration of President Harry Truman, the decade before, moved the United States from a stance of neutrality to one of intervention in the containment of communism worldwide.2 Under Truman and Eisenhower, the United States had already expended military and diplomatic aid in Vietnam, but the conflict did not hit the American political stage until 1959, after North Vietnam invaded Laos in December 1958. In President John F. Kennedy’s term, the situation continued to escalate with several hundred American Special Forces “military advisors” arriving in May 1961.
By the time of the Kennedy assassination, the United States had committed more than sixteen thousand troops to combat in Vietnam.3 Kennedy’s successor, Lyndon B. Johnson, was committed to creating a “Great Society” domestically and pursuing globalism abroad.4 Johnson felt compelled to fight a full-blown war in Vietnam, and in 1965 he authorized both air and ground combat operations against the North Vietnamese. America drafted its young men to fight a war in Southeast Asia. By the end of 1967, the number of American troops in Vietnam had increased to more than half a million.5 The war brought with it the usual attempts by the government to trample upon individual civil liberties, particularly those of Communists. The Court both liberalized and vacillated over the freedom of speech, issuing decisions that tended to strike at attempts to prioritize security over freedom.
The change of chief justice from Fred Vinson to Earl Warren in 1953 was one of the starkest changes in Court leadership, matched only by the change from Earl Warren to conservative Chief Justice Warren E. Burger in 1969. Moreover, the Vietnam War was overwhelmingly unpopular with the American people, thus providing the Court some political cover to avoid giving wartime deference to Congress. However, as the conflict in Vietnam escalated, the advances in First Amendment jurisprudence made by the Warren Court succumbed to the demands of “national security” on the road to Brandenburg v. Ohio.
Kennedy and Scales v. United States
In Scales v. United States, the Court upheld the 1958 re-conviction of Junius Scales of the CPUSA for violating the (mere) membership provision of the Smith Act on First and Fifth Amendment grounds. Broadly assaulting the freedom of association, the Court held thusly:
Little remains to be said concerning the claim that the statute infringes First Amendment freedoms. It was settled in Dennis that the advocacy with which we are here concerned is not constitutionally protected speech, and it was further established that a combination to promote such advocacy, albeit under the aegis of what purports to be a political party, is not such association as is protected by the First Amendment. We can discern no reason why membership, when it constitutes a purposeful form of complicity in a group engaging in this same forbidden advocacy, should receive any greater degree of protection from the guarantees of that Amendment.6
President John F. Kennedy commuted the sentence of Junius Scales, “the only American ever imprisoned under that clause of the Smith Act prohibiting membership” in a Communist organization, in December 1962.7 The gambit gained him favor in East Coast political circles, with the New York Times “feel[ing] that the President acted with courage and wisdom, as well as in the best American tradition in granting it.”8 Conversely, the Court’s decision was assailed by the New York Times editorial board when it was issued in June: “The sustaining of the Smith Act’s membership clause, and the setting in motion of the ponderous Internal Security Act, can only serve again to divert public attention to the virtually non-existent internal Communist threat. The real Communist threat is abroad.”9 Thus, in the background to the new liberal attitude of the 1960s, there was mounting tension regarding legal repression in the escalating Vietnam War.
President Kennedy was assassinated on November 22nd 1963, and Vice President Lyndon B. Johnson succeeded him. On August 2nd and 4th 1964, the United States raised a false flag operation in the Gulf of Tonkin by claiming that North Vietnamese naval ships attacked the USS Maddox based on deliberately misleading interpretations of NSA intercepts that showed no attack occurred.10 Tonkin was LBJ’s noble lie. As a result, LBJ had cause to begin a massive war in Southeast Asia. Between 1963 and 1968, U.S. troop levels in Vietnam went from 16,000 to 536,000.11 The next ground phase of the Cold War, the Vietnam War, derailed the Warren Court’s march toward a robust First Amendment jurisprudence in United States v. O’Brien. To its credit, though, the Warren Court did manage to ensure in its other First Amendment cases that a Third Red Scare did not result from the Vietnam War.
In 1965, the Supreme Court directly squared off with the Subversive Activities Control Board (SACB), the agency created under the McCarran Act for the sole purpose of harassing Communist organizations. If there were an agency that would be the source of dragging harmless, everyday political radicals through quasi-judicial trials, it would be the SACB.
In Albertson v. Subversive Activities Control Board, the Warren Court handily dealt the SACB a blow by taking all real power from it to perform its primary function, registering Communists:
The risks of incrimination which the petitioners take in registering are obvious. Form IS-52a requires an admission of membership in the Communist Party. Such an admission of membership may be used to prosecute the registrant under the membership clause of the Smith Act, or under §4(a) of the Subversive Activities Control Act, to mention only two federal criminal statutes. Accordingly, we have held that mere association with the Communist Party presents sufficient threat of prosecution to support a claim of privilege.12
By making the fact of mere association a question subject to the Fifth Amendment privilege against self-incrimination, the Court effectively said to all Communists that filling out these forms may be avoided by asserting their Fifth Amendment rights! This was a large blow to the ease of access that ambitious anti-Communists would otherwise have to information about possible prosecutions.
The Warren Court followed up its decision in Albertson with a direct attack on the McCarran Act and the state’s interest in national security in 1967 in United States v. Robel.13
Eugene F. Robel was a machinist in Seattle who was a member of the CPUSA.14 He worked at Todd Shipyards Corp. from the time the CPUSA was designated a Communist-action organization under the McCarran Act in 1961.15 In 1962, Secretary of Defense Robert McNamara designated the facility a “defense facility,” which thereby made employment for any Communist-action organization member at the shipyard a criminal offense, for the employee.16 Robel was charged with violating that section of the McCarran Act.17 The district court dismissed the indictment, relying on the precedent in Scales.18 The government initially appealed to the Ninth Circuit, which certified a direct appeal to the Supreme Court.19
The Supreme Court first noted that the portion of the McCarran Act under which Robel was convicted was “impossible to narrow its indiscriminately cast and overly broad scope without substantial rewriting.” Therefore, the Court held that “it is precisely because that statute sweeps indiscriminately across all types of association with Communist-action groups, without regard to the quality and degree of membership, that it runs afoul of the First Amendment.”20 Just like that, the criminalization of being both a CPUSA member and a federal employee disappeared. The Court’s next holding was utterly shocking.
Because the government asserted that Congress’s independent war powers could justify this action, the Court had occasion to address the merits of the state’s interest in national security. Chief Justice Warren’s majority opinion on addressing that question resounds as one of the few Supreme Court precedents vehemently attacking the over-exercise of war authority:
The Government seeks to defend the statute on the ground that it was passed pursuant to Congress’ war power. The Government argues that this Court has given broad deference to the exercise of that constitutional power by the national legislature. That argument finds support in a number of decisions of this Court. However, the phrase “war power” cannot be invoked as a talismanic incantation to support any exercise of congressional power which can be brought within its ambit.
“[E]ven the war power does not remove constitutional limitations safeguarding essential liberties.” More specifically in this case, the Government asserts that [the McCarran Act] is an expression “of the growing concern shown by the executive and legislative branches of government over the risks of internal subversion in plants on which the national defense depend[s].”
Yet, this concept of “national defense” cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. Implicit in the term “national defense” is the notion of defending those values and ideals which set this Nation apart. For almost two centuries, our country has taken singular pride in the democratic ideals enshrined in its Constitution, and the most cherished of those ideals have found expression in the First Amendment. It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties—the freedom of association—which makes the defense of the Nation worthwhile.21
The Court’s language in this case was a landmark change in war powers jurisprudence. Even Justice Jackson’s concurrence in Youngstown could not have had the limiting impact of this language. Compare this case to the Korematsu decision twenty-three years earlier: “Compulsory exclusion of large groups of citizens from their homes . . . is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.”22 The Court had come far in reversing the trend of bowing to the phrase “national security” anytime it was used in a legal argument. However, as the war escalated and tensions on college campuses across the country rose, the Supreme Court would not be able to keep up its trend and slipped back toward the Scales jurisprudence.
In the 1968 case of United States v. O’Brien, the Supreme Court held that a criminal law against burning a draft card did not violate the free speech protections of the First Amendment.23 The case was argued six days before the First Tet Offensive and decided shortly after the North Vietnamese began the Second Tet Offensive.
On March 31st 1966, David O’Brien stood on the steps of the South Boston Courthouse and burned his draft card as a personal protest against the war in Vietnam.24 A crowd attacked O’Brien, and the FBI subsequently arrested him for destroying his draft card, a violation of section 462(b)(6) of the Military Training Act.25 One year before O’Brien’s arrest, Congress had amended the Military Training Act to penalize anyone who “forges, alters, . . . or in any manner changes” a Selective Service certificate. The statute also punished anyone who “knowingly destroys [or] knowingly mutilates” a Selective Service certificate.26 O’Brien was indicted and then subsequently convicted by a jury for violating the Act.
The First Circuit upheld the conviction, and O’Brien appealed to the Supreme Court. In a 7-to-1 decision, the Supreme Court upheld the conviction and the statute as furthering a compelling governmental interest—maintenance of conscription records. Writing for the majority, Chief Justice Earl Warren rejected O’Brien’s argument that the law was only passed to suppress the free speech of anti-war protesters. The Court, it would seem, was unmoved by the prospect of a statute restricting First Amendment protections if the government could prove that there was another constitutionally valid, motivating factor.27 Chief Justice Warren wrote that “this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.”28
This decision by the Court marks a large departure from the American tradition of free, unrestricted speech. The Court effectively licensed the government to arrest individuals in wartime who manifest disagreement with its actions.
O’Brien was just “expressing a simple but powerful political idea: his personal opposition to and refusal to participate in the ongoing and proactive American military involvement in Southeast Asia.”29 Moreover, his simple destruction of his own draft card can hardly be said to disrupt the government’s record-keeping. Under the Court’s reasoning, the door was opened to the possibility for Congress to pass legislation which conflicts with one part of the Constitution but is valid under another. This decision is not logical. One part of the Constitution cannot guarantee the validity of a statute when another part forbids it. A law must conform to all the parts of the Constitution in order to be legitimate. There cannot, and must not, be a way for the government to abrogate some rights in pursuit of others, lest no rights remain secure.
The Dawning of the Nixon Years: Brandenburg v. Ohio
Immediately after winning the 1968 presidential election, Richard M. Nixon promised to bring the Vietnam War to an honorable end. Taking the zeitgeist of the Nixon anti-war movement, the Court decided Brandenburg v. Ohio in 1969, unanimously overruling Whitney v. California and casting considerable doubt on the Dennis line of cases.30 It held that for speech not to be protected by the First Amendment, it must be “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”31
Clarence Brandenburg was convicted under Ohio’s criminal syndicalism statute, Ohio’s two-for-one sedition and criminal syndicate act.32 Brandenburg was a local leader of the Ku Klux Klan in Hamilton County.33 At a meeting of the Klan with thirteen attendees—twelve members and one cameraman from a news crew—who were mostly armed, he gave the following speech:
This is an organizers’ meeting. We have had quite a few members here today which are—we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. We’re not a revengent [sic] organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance [sic] taken.
We are marching on Congress July the Fourth, four hundred thousand strong. From there we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you.34
Although certainly not an invitation that I would care to accept, it is a far cry from dredging up a massive popular revolt. The Court handled this issue by overruling Whitney, which eliminated the “clear and present danger” test and its rival, the bad tendency test, from Supreme Court jurisprudence and streamlined First Amendment jurisprudence into the “imminent lawless action” test.35 Therefore, the Court held, “Measured by this test, Ohio’s Criminal Syndicalism Act cannot be sustained.”36 The Court ruled that all innocuous speech is absolutely protected, and all speech is innocuous when there is time for more speech to resist or rebut it. The beginning of the Nixon years appeared as though there would be a shift toward a more liberalized state, but in reality it was a shift toward the secret-police state.
Nixon’s ’Nam: The Vietnam War from the Late 1960s into the 1970s
When the Nixon administration took over in 1969, it promised “peace with honor” in the Vietnam War. America believed that “Nixon’s the One” to end the war, and in that spirit he began the Paris peace talks and visited the South Vietnamese in July 1969 to mark the beginning of troop withdrawals. Taking action on his campaign promise, President Nixon announced the withdrawal of twenty-five thousand American troops from Vietnam in addition to the implementation of what Nixon referred to as the Vietnamization* of the southeastern Asian country. This turned out to be an oxymoron of sorts, as the latter part of the war saw the deaths of twenty thousand additional American soldiers and “several times the bomb tonnage [the military] had dropped in all of World War II.”37
What was supposed to be a presidency of healing and renewal for the nation transformed America into an era of protest, scandal, and government abuse. Demonstrations raged across America, calling for the president to end the war immediately. Bombings of ROTC buildings and the arson of other university buildings nationwide rose dramatically.38 Among the radical groups to shape out of the conflict, none gained more notoriety than the Weathermen. As a group that split off from the Students for a Democratic Society, the Weathermen declared social war not only on the conflict in Vietnam but also on the “entire imperialist system that made war a necessity.”39 In October 1969, the Weathermen charged into prominent Chicago neighborhoods waving flags, trashing cars, and breaking windows. In response, police shot six members and arrested approximately two hundred fifty. While many anti-war-movement supporters disapproved of these antics, America became fixated by the civil unrest taking the country by storm.40
In a speech targeted at responding to the nationwide protests, Nixon addressed what he called the “Silent Majority,” the segment of the population that was not protesting the war. Nixon told the nation that he refused to allow “the policy of this nation to be dictated by the minority who . . . try to impose [their view] on the nation by mounting demonstrations in the streets.” This statement by Nixon truly exposes the feelings of the newly minted president. “Echoing the worst moments of Adams and Wilson, Nixon now claimed that a foe within the United States was even more dangerous to that national interest than the enemy in Vietnam.”41
The White House became a headquarters for free speech suppression and the center for a litany of falsehoods to the American public. In the days before the largest anti-war demonstration in American history, the Vietnam Moratorium of November 1969, a deputy assistant to the president named Alexander Butterfield authored a memorandum outlining a plan to combat the message of protesters. Wires, letters, and news articles were needed, as Butterfield explained, to support the president’s policies which denounced the undesirable character of groups planning to participate in the November Moratorium, even going as far to say that such individuals were providing “aid and comfort to the enemy.”42 In essence, the Nixon administration considered protesting Americans to be treasonous and dangerous.
In the spring of 1970, President Nixon seemingly reversed his campaign promise to end the war in Vietnam when he announced the bombing of sites in Cambodia as a tactic to cut off North Vietnamese supply lines. The country was outraged. Student protests exploded at colleges and universities nationwide, culminating in the walkout of more than 1.5 million students. That spring at Princeton University, final examinations were deemed optional so that students could use their time to travel to Washington, DC, and protest.
It is truly amazing how much power political activism and the possibility of backlash can influence the decisions of the federal government. James Madison discussed at length the power of factions in the Federalist Papers,43 and the principles he writes about hold true throughout American history: The people themselves can provide a check on the tyranny of government. In January 1970, President Nixon had a monumental choice to make: Whether to expand the war even farther into the country of Laos. Protesters gathered in Washington44 to protest the further involvement of the United States in Vietnam. They were met with police and military personnel who swept the downtown region, sprayed tear gas, and arrested almost seven thousand people. One commentator recounted the experience was more akin to “Saigon in wartime than Washington”45 in peacetime. This set the stage for historic political scandal, including the infamous events of Watergate.
COINTELPRO and the Rise of Domestic Spies
By 1972, J. Edgar Hoover had been the director of the Federal Bureau of Investigation (FBI) for just short of forty years. He had served under six presidents and during almost twenty sessions of Congress. However, after his death, Congress “quickly decided that in a democracy no one should be able to amass the power that Hoover had” and soon passed legislation that limited future directors to a term of ten years.*
Although Director Hoover was responsible for the capture and prosecution of notorious criminals and corrupt politicians alike, it is now known that he instigated numerous illegal operations and directives. The most infamous of these has come to be known as COINTELPRO (Counter Intelligence Program).
After constant frustration with the federal court system limiting the investigative techniques of the Department of Justice as well its ability to prosecute radical political dissidents, Hoover initiated COINTELPRO to satisfy his “increasingly paranoid view of the world”46 and keep tabs on select American groups and organizations, mainly ones with Communist tendencies. This program was authorized without the approval or even knowledge of either the president or the attorney general.47
In 1956 agents of the Bureau began to investigate organizations like the Ku Klux Klan, the Black Panthers, and the Socialist Workers Party, among others.48 Techniques used by the FBI included anonymous phone calls, IRS audits, and other intrusive and sometimes illegal measures. In all, around seven different COINTELPRO operations existed at various times,49 making up 2,370 implemented counterintelligence actions.50
Initiated by J. Edgar Hoover with the goal of repressing and disbanding protest groups, the objectives of COINTELPRO reportedly included the following:
1) Gathering information (intelligence);
2) Crafting a negative public image of the targeted group;
3) Interfering with the group’s internal structure;
4) Instigating internal fighting and disagreement;
5) Limiting the group’s access to public resources;
6) Constraining protest and assembly abilities; and
7) Interfering with specific individuals and their ability to participate in the group.51
On a cool night in Media, Pennsylvania, in March 1971, members of the Citizens’ Commission to Investigate the FBI, a group under investigation by the COINTELPRO operation, broke into the Bureau’s field office. The burglars stole more than a thousand “poorly secured” dossiers and other documents which outlined the setup of COINTELPRO. The organization subsequently took the confidential documents to the press, and the program was fully exposed to the American public. Hoover swiftly declared an end to the program and created guidelines for the future intelligence of domestic individuals and groups. It did not operate by normal law enforcement means such as legitimate prosecution (except in the case of the HUAC hearings in the Second Red Scare), but by violence, deception, police harassment, and intimidation.52 COINTELPRO did not lead to a single criminal prosecution of any government officials, but instead to the creation of a special congressional committee in 1975 to investigate these crimes after that scandal was bolstered by Watergate. For the most part, the COINTELPRO operations were terminated in the early 1970s when the agents who facilitated the programs became weary of public exposure.53
The COINTELPRO directive epitomizes unconstitutional domestic government intrusion in the name of national security. There have been reports of FBI agents committing untold illegal and unconscionable behaviors: Causing anti-war activists to be evicted from their homes, disabling suspected people’s cars, intercepting mail, breaking and entering, stealing documents, wiretapping phones, bugging conversations, and doing potentially more.54 It is without question that Hoover was wrong to order such measures. The Washington Post, publishing an article on the constitutional assaults committed by the FBI in COINTELPRO, which, candidly, seem tame by contemporary standards of government lawlessness, stated sharply: “ ‘The American Public needs to know what the FBI is doing’ and ‘needs to think long and hard about whether internal security rests . . . upon official surveillance and the suppression of dissent or upon the traditional freedom of every citizen to speak his mind on any subject, whether others consider what he says wise or foolish, patriotic or subversive, conservative or radical.’ ”55
The government cannot legally break into any private home, open any mail, or wiretap any telephones without probable cause and a warrant from a judge. Such an intrusion clearly violates the protections of the Fourth Amendment.56
The Pentagon Papers and Watergate
As if the public relations situation was not bad enough for the Nixon administration, things took a turn for the worse on June 13th 1971. Several newspapers, including the New York Times and the Washington Post, had published highly damaging and embarrassing documents that were substantially at odds with the government version of recent events. These came to be known as the Pentagon Papers. “Suddenly the hidden intentions of American policymakers, at least through 1968, and their own understandings of the real situation in the Vietnam War, stood revealed.”57
Four years earlier, the secretary of defense had commissioned the creation of a “History of United States Decision-Making Process on Vietnam Policy, 1945–1967.”58 Although the Papers contained mostly common knowledge, they also contained key, unknown-to-the-public aspects of the war; knowledge that “they could hang people for.”59 For example, the papers documented that President Truman, while still in office, rejected appeals from Ho Chi Minh for American assistance; that the United States was actively planning military operations in Saigon after the 1954 Geneva Conventions; that advisors to President Kennedy had not merely advised South Vietnamese troops but rather actively engaged in direct military operations; that the Gulf of Tonkin Resolution had been rushed, even “rammed” through Congress under obviously false pretenses; and finally that, unbeknownst to the American people, American troops had knowingly dropped bombs on thousands of Vietnamese civilians.60 And in a bitter and ironic twist of events, the Papers revealed to the American public “that the enemy knew what we [the public] were not permitted to know.”61
Quite possibly the “Edward Snowden” of his day, Daniel Ellsberg became in essence an American fugitive when the government revealed that he had been responsible for leaking the Pentagon Papers to the press. Ellsberg was a Harvard-educated bureaucrat who served in the Department of Defense under then Secretary of Defense Robert S. McNamara. Ellsberg later left the government to work for the Rand Corporation, a nonprofit think tank initially formed to offer research and analysis to the U.S. government and armed forces. Spending time in Vietnam and subsequently becoming instrumental in the compilation of the Pentagon Papers, Ellsberg increasingly gained an adverse prospective of the war in Vietnam. As Professor Geoffrey Stone recounted: “He concluded that Vietnam had never been a war of ‘aggression from the North,’ as the government had claimed, or even a ‘civil war.’ Rather, it was ‘a war of foreign aggression, American aggression.’ ”62
After learning that a friend had become employed by the New York Times, Ellsberg decided to take action and sent over a redacted copy of the Papers to the newspaper. Upon initial receipt of the Pentagon Papers, the leadership at the Times debated the lawfulness and ethics of publishing the Ellsberg treasure trove.63 The threat of publication took the Nixon administration by complete surprise, since the Department of Justice and the attorney general had never heard of the Pentagon Papers.
Things escalated quickly, however, when the Justice Department filed a complaint with the federal district court in Manhattan seeking an injunction against the New York Times publishing the materials. Judge Murray Gurfein* granted a temporary injunction against the Times, ruling that harm resulting from not publishing the article was far outweighed by the “irreparable harm that could be done to the interests of the United States Government if [the documents were published and the government] should ultimately prevail [in the case].”64
In granting the government’s request for an injunction, the Court, for the first time in the history of the Republic, prevented a newspaper from publishing truthful information. This egregious move by Judge Gurfein has come to represent an abhorrent attack upon the freedom of the press and the First Amendment. The Constitution expresses no “right” to know what the government is up to, but it does guarantee the right of free speech and the right of the press to publish information to the public: Even information damning to the government. “[The] Framers were committed to minimal, ‘watch dog’ government, and saw rights as ‘retained by the people’ to be safeguarded against infringement by government.”65
The federal government does things in secret all the time. The public’s “right to know” is the “derivative”66 of First Amendment protections. However, when the government is truly acting unconstitutionally, persons who know this must have the lawful right to bring the situation to the light of day.67 Information attesting to such activity must have the ability to come to light. The federal government has received its power from the States and they in turn from the people: When government fails to remain faithful to its purpose and constitutional directive, the people deserve to know. As Justice Louis D. Brandeis famously stated, “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”68
After the injunction was granted, Ellsberg led the life of a fugitive. Several journalists interviewed him in secret locations around the nation. In one of those interviews Ellsberg responded to a question by news anchor Walter Cronkite:
I think the lesson is that the people of this country can’t afford to let the President run the country by himself . . . without the help of Congress, without the help of the public. . . . What these studies tell me is we must remember this is a self-governing country. We are the government. . . . [W]e cannot let the officials of the Executive Branch determine for us what it is that the public needs to know about how well and how they are discharging their functions.69
After hearing additional arguments on a motion by the Times to reconsider, Judge Gurfein had a substantial change of heart and removed his injunction, ruling that the Espionage Act of 1917 was never intended to interfere with the right of a newspaper “to vindicate the right of the public to know” the truth.70 Yet he stayed his vacation of his injunction, pending appeal.
This case and a companion case, dealing with an injunction the government sought and obtained upon the Washington Post, made their way to the Supreme Court in New York Times Co. v. United States.71 By 1971, the Court had changed in ideological makeup since the Earl Warren–Court days. A Nixon appointee, Warren Earl Burger, was now chief justice, and most commentators expected the Court to rule in the government’s favor. However, in a 6-to-3 decision, the Court rejected the validity of the injunctions upon the newspaper companies. Justice Hugo Black noted: “Every moment’s continuance72 of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment.” The Court rejected the claim that national security is a logical ground for limiting the freedom of the press: “[T]he word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”73 There can be no balance between the Constitution and civil liberties; there is only the bias of freedom over security via protection from the government.
The publication of the Pentagon Papers marked a historic validation of the press in America, and the story remained in the mainstream media for months.
What happened to the heroic whistle-blower? Daniel Ellsberg voluntarily turned himself in to federal officials in Boston on June 28th 1971. He was subsequently indicted under the Espionage Act of 1917. To the Nixon Justice Department, the Supreme Court’s decision to protect the press had no bearing on the vindication of Ellsberg; he had committed a crime against the government under the 1917 law.
However, Nixon, wishing to discredit Ellsberg even further, ordered, authorized, or acquiesced in the use of federal agents to break into the office of Ellsberg’s psychiatrist in September 1971.74 When District Court Judge Matthew Byrne received word of this, he dismissed all charges against Ellsberg because “the ‘unprecedented’ government misconduct offended the ‘sense of justice’ and ‘incurably infected the prosecution of this case.’ ”75 Nixon’s plan backfired.
A year and four days after the Pentagon Papers were first published came Watergate. Several senior administration officials were incarcerated and the president resigned for their involvement in the cover-up of a break-in at the Democratic National Headquarters in the Watergate Hotel, taking down the Nixon administration in 1974.76 Subsequent revelations showed that the Nixon administration and Attorney General John Mitchell’s illegal political spying program was aimed at electoral victory.77
Nixon’s Legacy: Attacks on Presidential Power
One attempt to apologize for the detention and concentration of Japanese Americans during World War II was the Non-Detention Act of 1971. It was meant to symbolize a promise of “never again” would the president be allowed to order the mass detention of civilians pursuant to an emergency. Unfortunately for Congress, however, doing that wouldn’t require a limitation on independent presidential power, but an amendment to the McCarran Internal Security Act’s concentration camp provision which expressly permitted the president to do exactly that. Thus, Congress passed the 1971 Non-Detention Act to amend the McCarran Act.78
While this book typically affords a deeper analysis of the text of national security statutes, the Non-Detention Act requires very little explanation; the bill simply says: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”79 Essentially, the Act amended the McCarran Act so that Congress, not the president, needed to declare the emergency. This Act would become increasingly important in the Global War on Terror thirty years later. The Act merely transferred the legal ability to assault due process from the president to the Congress. It did nothing to uphold natural rights or constitutional norms.
The War Powers Resolution of 1973
In terms of U.S. casualties, the Vietnam War was the fourth deadliest conflict in U.S. history.80 What most Americans would consider to be a lawful war with real national security consequences was in fact a military conflict executed without a formal declaration of war from Congress.81 In response to this outrageous expansion of unconstitutional power by three presidents (JFK, LBJ, and Nixon). Congress adopted the War Powers Resolution (WPR) in 1973.82 In a move that indicated a reversal of past acquiescence on the part of Congress toward presidential use of military force,83 the WPR purported to rein in the president’s use of troops without a declaration of war.
The WPR stipulates that the president, as the commander in chief of the armed forces, may introduce the military into hostilities or situations where hostilities appear imminent “only pursuant to (1) declaration of war, (2) specific statutory authorization, or (3) a national emergency created by an attack upon the United States, its territories, or its armed forces.”84 Furthermore, it requires that the president consult with Congress, when possible, before committing troops into conflicts and that the president report to Congress within forty-eight hours after troops are deployed into hostilities or in situations that show potential for imminent involvement with hostilities.85
The most substantial component of the law requires that the president withdraw troops after sixty days of hostility unless Congress has declared war or authorized a thirty-day extension or is physically unable to meet as a result of an armed attack on the United States.86 The president is able to extend the sixty-day period by another thirty days if he can show that doing so is in the best interest of the armed forces’ safety.87
Although not ruling explicitly on the validity of the WPR, the Supreme Court has been unambiguous in its interpretation that the constitutional separation of powers must be respected. But in Morrison v. Olson,88 the Court held that by undertaking the duties of another branch, a branch of the federal government does not violate the Separation of Powers Doctrine unless it attempts to increase its own powers at the expense of another branch.89
The WPR is unconstitutional. Some schools of thought argue that the resolution is unconstitutional because Congress has relieved the commander in chief powers from the president and claimed them for itself. Congress may only authorize or de-authorize military offensives. It may not conduct war or otherwise impede on the enumerated powers of the executive.90 However, that is a classic case of correct result based on wrong reasoning. It is unconstitutional because it permits the president to take offensive military action without a declaration a war. Quite contrary to the classical version of War Powers Resolution unconstitutionality, Congress is unconstitutionally giving its power to the president, not overreaching and restricting the president’s powers. The Constitution could not be clearer: Only Congress may declare war and provide for the armed forces; the president is the commander in chief and may conduct offensive war only with the express permission of Congress.91
The Church Committee and the Foreign Intelligence Surveillance Act of 1978
During the Ford administration, in the wake of the COINTELPRO, the Pentagon Papers, Watergate, and Nixon’s resignation, the Senate created a special committee to investigate government intelligence operations.92 The committee was named for its chairman, Sen. Frank F. Church (D-ID). The committee sat during 1975 and 1976, publishing fourteen reports and airing out the dirty laundry of the NSA, FBI, and CIA.* The agencies’ activities ranged from opening and photographing hundreds of thousands of pieces of mail, to assassinating foreign leaders, to establishing IRS abuses, to exploiting COINTELPRO. Its work inspired the creation of a special secret court to grant warrants for intelligence officials in violation of the Fourth Amendment.93
Thus, in response to decades of expansive executive action in regard to intelligence gathering,94 Congress passed the Foreign Intelligence Surveillance Act (FISA) in 1978.95 The Act was poised to address presidents who had been increasingly asserting “national security” interests in rationalizing their disdain for the Fourth Amendment.96
Under FISA, the government was authorized to monitor the communication of foreign entities and individuals who were agents of them, without a court order, for up to one year, unless the surveillance acquired the contents of any communication to which a United States person97 was a party. If the communication involves a United States person, judicial authorization is required within seventy-two hours of the government’s initial action.98
FISA also establishes a special federal court, known as the Foreign Intelligence Surveillance Court.99 A secret court with a secret judge, the court was made up initially of seven, and now eleven, federal district court judges, appointed by the chief justice, who hear requests by the federal government for wiretap authorizations against suspected foreign intelligence agents inside the United States. If an authorization request is denied, the government may not apply to a different FISA judge. It may, however, appeal to the Foreign Intelligence Court of Review to address grievances.*
The government must have probable cause of criminal behavior, and it must particularly describe the place to be searched or the person or thing to be seized for a judge to authorize a search warrant upon an individual or entity. FISA, however, established a new, different, and lesser standard. Under FISA an individual under suspicion need be an agent of a foreign power. Therefore, the government would only have to show a FISA Court judge probable cause that an individual was such an agent. Under the Act, this alone was sufficient for the judge to issue a warrant. The FISA Court and many parts of the Act itself have been amended repeatedly in the wake of the September 11th 2001 terrorist attacks. The current federal government has irreverently disregarded the Constitution in its effort to “protect” America and abused this special court structure to conduct unprecedented, Big Brother–type data-mining operations of all persons in America.
The common thread of constitutional excess in the Cold War era is secrecy. The government insisted upon secrecy for itself, yet openly punished it for groups it hated and feared. The ancient right to be left alone suffered a great setback. Soon, the feds would look to more military violence.
* President Richard Nixon, Address to the Nation on the War in Vietnam (November 3, 1969).
* Nixon wanted to turn ground combat generally over to the South Vietnamese.
* “Future FBI directors would serve ten-year terms—long enough to outlast whatever president appointed them and thus provide some political cover, yet not long enough to establish a separate power base.” Garrett M. Graff, The Threat Matrix: The FBI at War in the Age of Global Terrorism (New York: Little, Brown, 2011), 56.
* Judge Gurfein was appointed by President Nixon.
* The full text of the Church Committee’s reports is available in many places online. The Assassination Archives and Research Center, for example, provides them at “Church Committee Reports,” http://www.aarclibrary.org/publib/contents/church/contents_church_reports.htm.
* This is very rare. The first request to be appealed occurred in 2002. See In re Sealed Case No. 02-001, 310 F.3d 717 (2002) (per curiam).