James C. Goodale: WikiLeaks: Pentagon Papers Injustice Deja Vu

James C. Goodale, counsel for the The New York Times in the Pentagon Papers case, is writing a book, Fighting for the Press: Why the Pentagon Papers Case Still Matters, and is co-producer of the TV program Digital Age on Channel 25 in New York City.

Just in time to spoil the celebration of the 40th anniversary of the publication of the Pentagon Papers, the Obama Justice Department is trying to do what Richard Nixon couldn't: indict a media organization.

A grand jury investigation into WikiLeaks founder Julian Assange under the Espionage Act and the Computer Fraud and Abuse Act is under way in Alexandria, Virginia. The Justice Department has already subpoenaed the electronic records of many former WikiLeaks volunteers and at least three people have now been subpoenaed to testify in a case that could potentially criminalize forms of investigative journalism.

Many comparisons have been made between the Pentagon Papers and WikiLeaks, and most have focused on the landmark decision in New York Times v. United States that essentially banned prior restraints—or censorship orders—on the press. But long forgotten in Nixon's war on the press is an equally dangerous legal maneuver: Nixon convened a grand jury to indict The New York Times and its reporter, Neil Sheehan, for conspiracy to commit espionage—the same charge Obama's Justice Department is investigating Assange under today.

In 1971, after Nixon had lost the Pentagon Papers case in the Supreme Court, he desperately wanted to bring criminal charges against the Times. Attorney General John Mitchell first went to U.S. Attorney Whitney North Seymour Jr. in New York and asked him to indict the Times. When Seymour refused, a grand jury was convened in Boston, where the prosecutors eventually dragged virtually every journalist and anti-war academic in the Cambridge area to court using subpoenas. The Justice Department wanted to know exactly who knew of the Pentagon Papers before they were released and how they ended up at the Times....