Pentagon Papers strategist p.9

By: DOROTHY GIOBBE TWENTY-FIVE YEARS ago, the country split over the Pentagon Papers issue: the First Amendment rights of the press versus the security threat which could result from the publication of classified government material.
Perhaps no split was more ironic than the one involving two former law partners who ended up on opposite sides of the landmark 1971 press case.
Before joining the Nixon administration as secretary of state, William Rogers had been a partner at Rogers & Wells, outside counsel for the Washington Post and the firm which later argued the Pentagon Papers case on behalf of the newspaper. While at the firm, Rogers brought in the Post as a client.
When the government sued to stop publication, attorney William Glendon of Rogers & Wells quarterbacked the Post's defense strategy beginning in the lower courts and eventually ending up before the U.S. Supreme Court.
New York Times vs. United States, 403 U.S. 713, dubbed the Pentagon Papers case, involved top secret material first obtained by the Times, excerpts of which were published by both of the newspapers.
The material was an extensive account of Pentagon strategy and involvement in the Vietnam War.
The Nixon administration held that initial publication violated United States espionage laws, with potentially disastrous effects on U.S. troops and diplomatic efforts to end the war. The government went to court to stop further publication.
As Glendon recalls, there was no contact at all with his former colleague during the week it took for the case to race from District Court to the Supreme Court.
"I got involved with the case because when Bill was with the firm, he acquired the Post as a client," Glendon recalled. "The principal litigation they had was libel, and Bill asked me to handle the libel cases, which I did for several years."
During the Post's legal battle, Glendon recalled, "Bill was very circumspect, and there was no contact at all between us, even though Bill had essentially been the outside general counsel to the Post [before his departure]."
After the Times and Post won the case, Glendon said he and Rogers
didn't discuss it in much detail, even though Rogers rejoined the firm in 1973.
"Maybe we had some casual remarks about it, but we never sat down and plumbed the depths," he said. "I think if Bill was at the firm, he would have done exactly what we had done ? represented his client."

Dizzying speed
Glendon still marvels at the dizzying speed of the case. On June 18, 1971, the Post case commenced in the Washington District Court. Only eight days later, on June 26, it was argued before the U.S. Supreme Court.
"The pressure was intense because you had the presses that had been stopped by the government. At the same time, there was no time to think or plan," Glendon recalled.
"Our argument essentially down the line was that there was nothing there ? it was all just smoke and mirrors, and it was just the government getting the jitters," he said. "In fact, I never knew why the Nixon administration was so bothered by it, except for the fact that they were generally bothered by leaks. The whole thing was a menagerie of secrecy.
"But you still had an impressive opponent, and it couldn't be brushed aside. This was the Attorney General of the United States saying you were betraying the nation."
Once it became clear the case was headed to the Supreme Court, Glendon began to formulate his strategy. Based on the voting patterns of the sitting justices, he crafted a plan to maximize sympathy for his argument.
"There was an absolutist view on the court," Glendon said. "Black and Douglas had the view that when the First Amendment said there will be no law, that meant no law, so I knew we had at least two votes.
"I also knew we were probably going to lose three votes, Chief Justice Berger, and Justices Blackmun and Harlan."
That left four justices in the middle with the power to sway the case ? Justices Stuart, White, Brennan and Marshall. Glendon and his team soon realized the value of appealing to the influential center.
"The night before the argument, I went to the hotel to try to get ready for the oral argument," Glendon said. "About one thirty in the morning, I went back to the office to see how the brief was coming. To my horror, they had started pretty well along on a brief that took the absolutist view.
"In other words, it would please Blackmun and Douglas, but it wouldn't thrill the justices in the middle. So I said you have to change it. Needless to say, they didn't want to change it, not at one thirty in the morning. But they revised it and we went more down the middle.
"I'm sure that may not have thrilled some of the newspaper people either, but my job was to win the case and get rid of that prior restraint."
Of course, the case was decided in the press' favor, six to three. By then, however, the Times had been prevented from publishing the Pentagon Papers for 17 days, after initially printing some of the material on June 13. The Post was stopped for 10 days.
Glendon's assessment of the justices was on target. Justices Black, Douglas, Brennan, White, Stewart, and Marshall all came down on the side of the newspapers' rights to publish the papers, while Justices Berger, Harlan, and Blackmun dissented.
For many people, the Pentagon Papers is associated less with the revelations in the material and more with government attempts at censorship. In fact, soon after the case was decided, many pundits argued that the material wouldn't have made such a splash if the government hadn't tried to stop the newspapers from publishing it.
"The fact that it was the press, the prior restraint and the fact that it was done to the press made it a great story," Glendon agreed. "It kept them humming during the whole course of it and after the Supreme Court decision, it kind of petered out.
"It was quite an experience," Glendon added. "I knew it was a terribly important case and I knew I had to win it, but the historical importance of the case never really crossed my radar screen until afterwards, when we had time to sit back a little bit."
?(In this 1971 photo, attorney William Glendon (center) discusses the Pentagon Papers case with reporters the day before he presented arguments before the U.S. Supreme Court on behalf of the Washington Post.) [Photo & Caption]