June 13, 2013 · 0 Comments
By James C. Goodale:
James C. Goodale was chief counsel for the New York Times during the Pentagon Papers case. He is also former vice chairman of the New York Times Co. and is a leading legal expert on the First Amendment. He is author of the new book Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles. Chris Spannos, Editor of NYT eXaminer (NYTX), interviewed James about the NSA’s “Prism” program and other surveillance operations. This interview is one part of an NYTX video interview series with James. This segment has been transcribed and edited for clarity. The remaining segments, which focus on James's book, are coming soon.
Chris Spannos: Congratulations on your thrilling new book James.
James C. Goodale: Thank you very much.
CS: First, regarding the NSA whistleblower Edward Snowden – his release of NSA surveillance revelations – Daniel Ellsberg who leaked the Pentagon Papers to the New York Times in 1971 commented that “there has not been in American history a more important leak than Edward Snowden's release of NSA material – and that definitely includes the Pentagon Papers…” Your comment please.
JCG: Well, I don’t think I really agree with Dan Ellsberg on that for a couple reasons. Number one, I really think the Pentagon Papers – about which I’ve written a book – is a far more important event in American history and will always go down as a major event in American history for the reasons I explain in my book. [NYTX note: see next segment] I don’t think this leak will go down necessarily in American history for the following reason: there is nothing new about it.
There are two parts to the leak. One is a leak that relates to, shall we say, emails. And the other one relates to phones, okay. Now the email leak which is “Prism” – the Prism leak – is the same leak, for all practical purposes, as a leak that James Risen of the New York Times wrote about “X” years ago, I can’t remember when it was, in 2004 or 2005, for which he received the Pulitzer Prize and for which he was supposed to have “blood on his hands.” So, big deal. This leak, oh sure it’s official, but it’s already happened.
Now the phone leak was written about, and indeed the earlier one might have been too, by James Bamford who covers the NSA. And if one wants to go to my blog site [jamesgoodale.net], it will be a rare visit. Not many people get there, you’ll be one of the first. You will find there the teevee show I did with James Bamford about the phone leak. And there is nothing different about my teevee show and what has been reported and leaked by our friend [Edward Snowden] in Hong Kong. So, I think Ellsberg is wrong on this one.
CS: I’d like you to comment on the legal dimensions of the leak. Since you were legal counsel for the Times in the Pentagon Papers case, this places you in a unique position to comment, among other reasons. In the New York Times on Tuesday, there was an Editorial talking about the need for more public debate. On the Op-Ed side of the pages David Brooks said that Edward Snowden had betrayed the American public and the American constitution. Then Wednesday’s Times had an Editorial commenting that our political leaders have not informed the citizenry with enough information to understand the gravity of what is wrong with these intelligence gathering methods. And then again on the Op-Ed side, Thomas Freedman argued that we should give up some of our personal rights to help prevent a future 9-11. I’m worried about what may be perceived as the Times’s impartiality to the legal dimension of this leak when they present these two opposing views. Can you comment on the legal dimension that readers should keep in mind?
JCG: Let me work into that because I think the one thing that readers should focus on is that Obama said that we should have a public debate. So on the one hand we have David Brooks, and apparently Friedman although I didn’t read his piece, saying “this is the end of the world.” On the other hand Obama is saying “this is terrific, we can now have a debate.” So I think that, in that respect, the publication of this leak was similar to the Pentagon Papers because it provoked a debate. This is a different kind of debate because we’ve never had one about the NSA before and we’ve needed to have one for years.
With respect to the legality of the leak, the way the government is looking at these leaks is that they are subject to the Espionage Act. So that act presumably will be applied when and if he is charged. He will be I think. That was what was used against Daniel Ellsberg. I’m more interested, not in the leaker, but in the publication – because that is where the First Amendment rights are. And the leak in this regard, as far as I’m concerned, is protected by the First Amendment, as was the Pentagon Papers. In other words, the story that the Times ran, the Guardian ran, and that the Washington Post ran lawyers say is “protected.” In other words, it is legal under the First Amendment.
CS: What about the NSA’s intelligence gathering project itself?
JCG: The legality of the intelligence gathering project itself is a little more difficult because the precise facts that underlay all this will have to come out during the debate. I would say that, if in fact, we’re looking at an excessive amount of emails, than I don’t think that would be legal. If in fact, we are abusing the access that is given by the phone program, when everyone’s phone data is, not tapped, but accessible, that would be illegal. And I would say that probably the better way to focus this is that this precise program was never approved by congress. The overlaying authority was but the precision of the program was not and I think that is what Obama wants to do. And I would think that in talking about such approval, the image of this million square foot edifice in Utah with building after building – which by the way, seems to me could have only been built by Obama – and with the resulting conclusion that every one of us has phone records that are in that building – I think that that is pretty frightening.
CS: Your book, “Fighting for the Press” couldn’t have come at a better time – helping assess the Obama administration relative to the Nixon administration during the Pentagon Papers case. The ACLU filed a suit against the Obama administration for its surveillance program. What are your thoughts on this?
JCG: The biggest problem that the ACLU and others have had attacking this program – because they have tried to do it before – is to show that there is a personal impact and connection with the person who is bringing the suit – namely the ACLU – because the court says that if there is no such connection then they’re not going to render an advisory opinion and the case has been kicked out. The ACLU says that its phones are being accessed and, because that is so, people won’t associate with them. That gives them a standing to sue. You know, that sounds pretty interesting so they might get over that. So then, if they can get into court so to speak, they will address the couple questions that I just discussed.
James C. Goodale was chief counsel for the New York Times during the Pentagon Papers case. He is also former vice chairman of the New York Times Co. and is a leading legal expert on the First Amendment.
Chris Spannos is Editor of NYT eXaminer (NYTX) http://www.nytexaminer.com.