This is the fourth and final article in a Constitution Daily series on the constitutional legacy of the war in Vietnam, with each article focused on a theme explored last week or this week in the PBS documentary, “The Vietnam War,” by Ken Burns and Lynn Novick. This article is keyed to tonight’s episode, retelling the story of how Americans finally learned about how their government had misled them for years about the war’s progress. The PBS documentary concludes Thursday night.
War cannot be waged without secrecy. But when secrecy is replaced by intentional deception by a nation’s leaders, war will not be tolerated. That is one of the main public policy lessons of the Vietnam War. It is also one of the fundamental constitutional lessons on the relationship of the sovereign people with the leader they entrust with the power to wage war on their behalf, the Commander in Chief.
For the Vietnam War, this was how that lesson turned out: the deference that patriotism extends to those running the war ultimately was widely replaced by cynicism and resistance, energized by the news media as it carried out its role as abiding skeptic of government propaganda.
The period of this war – from the summer of 1964 to March 1973 – was a vibrant time for American journalism and for the Free Press Clause of the First Amendment.
In the combat zones of South Vietnam, reporters and photographers stayed close to the action and – for the first time in an American war – were not hampered by military censorship. They would plainly, and with stark photos, tell their readers and listeners when the war was going badly, as often seemed to be the case.
Back home, newspapers and television networks would keep a steady monitor on what the President and other government leaders were telling the public about how American troops were doing in Southeast Asia. Diligent reporters were continually probing for proof that the “light at the end of the tunnel” rhetoric about battlefield success was, in reality, a lie, or at least an exaggeration.
Out of that search for truth would come a constitutional reckoning that had never before occurred, an astounding victory for the press and for the First Amendment in the midst of war, when censorship is usually the tolerated norm. On the morning of June 30, 1971, a Supreme Court majority (6-to-3) would clear the way for newspapers and broadcasters to publish the contents of wartime decision-making documents, at that time still protected as “Top Secret.” It would happen in a case that was aptly named New York Times Co. v. United States. (The Washington Post was also involved.)
The Times would call that 47-volume collection the “Vietnam Archive,” but they would shortly become known by the enduring name, the “Pentagon Papers.” Begun in mid-1967 by then-Secretary of Defense Robert McNamara, the project’s aim was to chronicle U.S. political and military involvement from 1945 to 1967.
There were thousands of pages of internal military documents and memoranda created at the highest levels of the U.S. government, describing how presidents and their aides had made the most controversial decisions on sending troops and beginning bombings and other strategic moves, the bulk of which the American people had not known about at the time. In fact, the people had been regularly told much that the actual documents flatly contradicted.
Two copies of the Papers wound up in the hands of a Rand Corporation analyst in California, who had worked on the study, Daniel Ellsberg. Among the growing number of Americans who had come to believe that the war was a mistake, Ellsberg devised his own way to resist: he leaked much of the Papers to a New York Times reporter and former war correspondent in Vietnam, Neil Sheehan.
As readers of The Times’ opened their newspaper on June 12, 1971, the front-page would tell them of the wedding of President Richard Nixon’s daughter Tricia, and would also give them the first installment of the report on the Pentagon Papers, under Neil Sheehan’s byline.
It was an astounding revelation, documented proof that, as this month’s new PBS documentary on the Vietnam War puts it, “presidents and their advisers had steered the nation toward deeper involvement [in the war] despite their own doubts about the chances” of winning, and that Americans’ government had lied to them, repeatedly and intentionally.
Among the more startling of the many disclosures was that the government’s real reason for carrying on the war was not to assure the independence of an ally, South Vietnam, as the government had said over and over again, but the far more ambitious geopolitical aim – likely to take years and years to achieve—of keeping China from expanding its influence in that part of Asia.
President Nixon, according to the PBS retelling of the story, initially chose not to take any action at the newspapers’ monumental breach of secrecy, because he thought the publication would only put his predecessors in the White House to shame. He changed his mind, and the government went to court to stop The Times and The Post from continuing to publish. The Times got three articles into print before being ordered by a federal judge to stop. The Post, which also got access to some of the Papers and started writing about them, also was ordered to cease.
There then followed a remarkable 15-day period, one with no parallel in the history of the American press. Under federal court order, and against its editorial will, the press was forbidden to publish information gathered in the ordinary course of reporting.
That period, of course, ended with the Supreme Court’s decision. Each of the nine Justices wrote an opinion, and most of them also joined others’ opinions. But the decisive document in the stack was a one-page ruling that provided a single rationale for the outcome.
Quoting from the court’s own prior rulings, the order said simply that “any system of prior restraints of expression comes to this court bearing a heavy presumption against its constitutional validity.” It noted that two of the lower courts that had acted on the government request to bar further publication had “held that the government had not met that burden. We agree.”
Since none of the opinions issued along with that order had the votes of a majority of five Justices, readers of the ruling had to parse through the pile to decide, for themselves, why the government had lost the case. Among many in the press, their favorite was this passage from the opinion written by Justice Hugo L. Black, the plain-spoken Alabaman:
“Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.”
The Times, in an editorial the next day, would suggest that the focus should not be on “the confusing welter of individual opinions” by the Justices, but rather on the “real meaning….the implicit but inescapable conclusion that the American people have a presumptive right to be informed of the political decisions of their government and that when the government has been devious with the people, it will find no constitutional sanction for its efforts to enforce concealment by censorship.”
The Vietnam War would, of course, continue for another 23 months, but the cloud of constitutional doubt created within the pages of the Pentagon Papers would hang over that conflict until the last American soldier and the last American prisoner-of-war had come home.
Years later – in fact, in June 2011, 38 years after the war had ended – the “Top Secret” label would be officially removed and the entire 47-volume collection would be made public by the government.
While the newspapers and the broadcast entities usually are engaged only in writing the first drafts of history, in the case of the Pentagon Papers, the press was doing its part to create a full record of how a deeply controversial war had been waged, and a full record of reasons why that war probably had been lost – perhaps from the beginning.
The record contained in the Pentagon Papers themselves would become only one of two such documented accountings of how the war had been waged. Among the trial records created in the U.S. District Court that sits on the edge of Foley Square close to New York City’s Chinatown were the exhibits and testimony of the case of Westmoreland v. CBS.
These days, few Americans will easily recognize the significance of those records, or of the trial that generated them. But that record, too, is about the Vietnam War and it, too, focuses on the numbers: that is, the counting of the enemy that U.S. troops would encounter in the various offensive thrusts made into South Vietnam by the North Vietnam Army and its guerrilla counterpart, the Viet Cong.
The case is named for the former commander of U.S. forces in South Vietnam, General William C. Westmoreland. His adversary, the CBS television network, had committed libel, his lawsuit claimed, in a documentary broadcast on January 23, 1982 (almost nine years after the war’s end).
Westmoreland had been in command during perhaps the best-known, and one of the most effective, of invasions by the North into the South – the Tet offensive that began in January 1968 and continued for months.
The well-known commentator on CBS, Walter Cronkite, had been in Vietnam right after the Tet assault began. Coming home, he told his listeners: “To say that we are mired in stalemate seems the only realistic, yet unsatisfactory, conclusion.”
Fourteen years later, it would be Cronkite’s network – and, in particular, his brash and aggressive colleague, Mike Wallace – taking on General Westmoreland and his reaction to the Tet campaign. The broadcast was well summed up by its title: “The Uncounted Enemy: A Vietnam Deception.” It suggested that Westmoreland had manipulated the calculations of enemy force strength to create the progress, and implied that he had done so deliberately to provide political cover for President Johnson.
Westmoreland sued the network, seeking $120 million in damages for the harm he claimed had been done to his reputation as a military leader. He contended that his lengthy interview under Wallace’s hard questioning had been cut down to two minutes in the broadcast, with the specific aim of making him look his worst.
As the trial progressed, the rulings by the judge, District Judge Pierre Leval, went frequently against Westmoreland’s legal strategy, and even his own legal team came eventually to the conclusion that the jury was going to rule for CBS. He and the network agreed to settle the case, with no apology, as such, by CBS, and no damages payment; each side covered their own legal fees.
In one of its broader implications, the trial and its outcome demonstrated with utmost clarity how difficult it is to win a libel lawsuit against a recognized public figure, especially with the constitutional limits that the Supreme Court had set up against libel lawsuits like this one.
But there was another broad implication: in the maneuvering of lawyers, gathering exhibits and putting on the stand many witnesses who knew about how the war had been waged, this case produced a huge record – probably even more comprehensive than the Pentagon Papers had, because those Papers ended the story of the war in 1967; the Westmoreland trial records went beyond that.
A detailed, and impressive account of that aspect of the case and its meaning for the history of the war, was made by two journalists— Bob Brewin and Sydney Shaw. Their book, published in 1987, is Vietnam on Trial: Westmoreland v. CBS. It is still available on book sales sites.
The first page of the book demonstrates well the significance of the trial:
“On the last day of the Westmoreland v. CBS trial, Judge Pierre N. Leval told the jury: ‘We have watched the creation in this courtroom of an extraordinary, unique and rich record for historians to study. I suggest that the value of this proceeding may have more to do with the record it has created for history than with the verdict it could have produced.’ ”
Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.