Of the many persons frequently associated with the Pentagon Papers case decided by the U.S. Supreme Court 40 years ago, Robert McNamara, Daniel Ellsberg, Richard Nixon, John Mitchell, Katharine Graham, Ben Bradlee, Arthur Sulzberger, and Abe Rosenthal are among the most prominent.1 Each played an important part in this historic episode. At the same time, U.S. District Judge Murray I. Gurfein was also a dominant figure in this landmark case, but his role is all but forgotten, and shouldn’t be.

In that frenetic litigation, Judge Gurfein soundly balanced a respect for the executive branch’s responsibilities in national security cases with his responsibility to uphold the rule of law, a balance that was critical to the ultimate legal victory by The New York Times to publish the documents. And although Judge Gurfein was surely not the only judge in the litigation to strike such a balance, he was the first. More importantly, the balance he struck remains highly relevant today because many federal judges excessively defer to the executive branch in such cases, thus undercutting the rule of law and checks and balances essential in the governmental scheme.

To be sure, Judge Gurfein’s importance as the trial judge in the case was overwhelmed at the time by the outcome, which vindicated the importance of a free press. Ironically, the Internet has made the law of prior restraint, which Judge Gurfein relied on in upholding the presses’ right to publish, almost an antique. Recent WikiLeaks disclosures dramatically underscore that point.

Nevertheless, on this milestone anniversary, we should urge the federal judiciary to use Judge Gurfein’s conduct in the case as a north star when the government claims a case implicates national security.

On June 30, 1971, the U.S. Supreme Court, by a vote of 6 to 3, upheld the right of the press to publish a top-secret Pentagon history of America’s involvement in Vietnam over the objections of the Nixon administration that the publication would harm national security.2 The administration’s legal offensive against the Times, and subsequently against the Washington Post, was the first time our federal government sought a prior restraint against the press because of national security considerations. Ultimately, the newspapers prevailed, making the decision one of the most important press victories in history.

That case dates back to 1967, when Secretary of Defense Robert McNamara authorized a secret study of U.S. involvement in Vietnam. It took two years to complete the 7,000 page history and the 15 copies were classified Top-Secret-Sensitive. Daniel Ellsberg, once a Pentagon official who eventually opposed the war, leaked the study to Times journalist Neil Sheehan.

The first of 10 planned installments was published by the newspaper on Sunday, June 13, under a headline: “Vietnam Archive: Pentagon Study traces 3 Decades of Growing U.S. Involvement.” The opening paragraph of the news article written by Sheehan stated that a “massive” Pentagon study commissioned by McNamara on “how the United States went to war in Indochina” demonstrated that four administrations “progressively developed a sense of commitment to a non-Communist Vietnam, a readiness to fight the North to protect the South, and an ultimate frustration with this effort—to a much greater extent than their public statements acknowledged at the time.”

That Monday the Times published its second installment, and by evening U.S. Attorney General John Mitchell sent the newspaper a telegram demanding that it cease publication on the ground that publishing the information violated the 1917 espionage act and caused “irreparable injury to the defense interests of the United States.” The Times refused and the next morning the government sued the newspaper in the Southern District of New York.

The government’s legal action against the Times was assigned to Judge Gurfein, a patent lawyer who had just been appointed to the federal bench by President Nixon. The case was Judge Gurfein’s very first.

He was sympathetic to the government’s national security claims, and when the government lawyers told him that further publication would reveal important military secrets, ongoing intelligence operations, the names of covert agents in the field, or promising secret diplomatic efforts aimed at ending the fighting in Vietnam, Judge Gurfein urged the newspaper’s lawyers to submit voluntarily to an injunction. When the lawyers refused, he barred publication pending an evidentiary hearing on Friday, June 18.

In response to the injunction against the Times, Ellsberg made a substantial portion of the study available to the Washington Post, which published its report three days later, resulting in the Nixon administration suing that paper as well for an injunction. That set the stage for both the Times case and the Post case to be presented to the U.S. Supreme Court eight days later.

On that same day, June 18, in Manhattan, Judge Gurfein conducted a secret hearing in the Times case so that the government could present its evidence that the planned Times publication would harm the nation’s security. At the hearing’s commencement, Judge Gurfein was deferential to the government witnesses. But as their testimony went from one general claim to another without relating the claims to particular passages which described the concrete harm publication would inflict, Judge Gurfein went from being supportive of the government to becoming skeptical and finally impatient. Eventually, he turned to one of the government witnesses and stated that he would give the witness “one more chance” to relate the general allegations to specific passages.

When that witness, and others, failed to do so, Judge Gurfein concluded that the government had provided no “cogent reasons” to support its request for a continuing injunction. As a result, the next day, Saturday, June 19, Judge Gurfein dissolved the restraining order and denied the government a continuing injunction.3 That order set the stage for the Nixon administration’s appeal to the Supreme Court.

Buried in Judge Gurfein’s courageous opinion that asserted that the “security of the Nation is not at the ramparts alone,” but that it depends on “our free institutions,” particularly a “cantankerous press, an obstinate press, a ubiquitous press,” are four decisions he made that resulted ultimately in the presses’ victory.4 First, he imposed upon the government the burden of proving that the classified study contained information that would seriously harm the nation’s security if publicly disclosed. He also rejected the government’s claim that the mere fact that the study was classified top-secret itself established that it contained information harmful to the national security if disclosed. Further, he required that the government’s evidence link its general allegations to particular passages in the study. And, finally, he assumed the responsibility of deciding whether the government’s evidence satisfied its evidentiary burden as opposed to deferring to the judgment of the government’s witnesses.

When the Supreme Court decided the Times and the Post cases, only three members of the Supreme Court voted to bar the newspapers from further publishing excerpts from the Pentagon Papers. Writing for himself as well as Chief Justice Warren E. Burger and Associate Justice Harry A. Blackmun, Associate Justice John Marshall Harlan stated that the federal courts should defer to the executive branch in matters involving foreign affairs because the president was the “sole organ in the nation in its external affairs.” Indeed, he claimed that a judge’s review of the government’s claims in this case should be limited to determining that the “subject matter of the dispute” lies within the “proper compass of the President’s foreign relations power,” and that a head of an executive department personally concluded that disclosures would “irreparably impair national security.”

Six members of the Court —Associate Justices Hugo L. Black, William O. Douglas, William J. Brennan, Potter Stewart, Bryon R. White and Thurgood Marshall—concluded, as did Judge Gurfein, that the federal judiciary’s responsibility to uphold the rule of law required it to demand more of the executive branch than Justice Harlan permitted. And once they did, they concluded that the government had failed to satisfy its “heavy burden” of proof by relating its general allegations to specific information in the Pentagon Papers.

Many years later, Erwin Griswold, the solicitor general who argued the Pentagon Papers case for the government before the Supreme Court, affirmed the rightness of the outcome when he publicly acknowledged that the newspapers’ publications of the study did no harm to the national security.

A majority of the members now on the Supreme Court have in recent years walked in Justice Harlan’s footsteps. In so doing, they have crafted many legal doctrines that insulate the executive branch from meaningful accountability in cases it claims implicate national security. The result is that liberties are unnecessarily sacrificed, injured individuals are denied a judicial remedy, executive officials may violate the law with impunity, checks and balances in government structures are diminished, and the national commitment to the rule of law is undermined.

A change is long overdue and Judge Gurfein and other judges in the Pentagon Papers case demarcate an alternative path. The federal judiciary needs to rebalance its deference to the executive branch in national security cases with a stronger commitment to upholding its own independence and its responsibility to uphold the rule of law. Such a change will strengthen our commitment to being a society ruled by law and not by willful executive branch officials.

David Rudenstine is the Sheldon E. Solow Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University, and the author of “The Day the Presses Stopped: A History of the Pentagon Papers Case.”

Endnotes:

1. “The Pentagon Papers Case” was the popular name of the case that was formally entitled New York Times Co. v. United States, 403 U.S. 713 (1971).

2. Id.

3. United States v. New York Times Co., 328 F. Supp. 324 (S.D.N.Y. 1971).

4. Id. at 331.