Of AfPak, Pomegranates, and Pentagon Papers

Posted in Case Reports by Mike Sacks on July 26, 2010

The Pentagon Papers case has been getting some recognition today after WikiLeaks gave the New York Times, the Guardian, and Der Spiegel nearly 100,000 classified reports from 2004-09 on the Afghanistan war.

CNN reports on Press Secretary Robert Gibbs’s addressing comparisons between today’s big story and the 1971 Supreme Court case over whether the government had the power to restrain the New York Times from publishing the Pentagon’s top secret history of American involvement in Vietnam:

“The Pentagon Papers are different in the sense that you are talking about policy documents, these are sort of on the ground reporting of different events. I don’t see in any way how they are really comparable,” Gibbs said.

Noting that the Pentagon Papers contained significant revelations in terms of policy, Gibbs said that Sunday’s publication has not “markedly changed” what “is known, about our relationship and our efforts in both Afghanistan and Pakistan by what is in these documents.”

“You don’t have some revelation that there is a systematic change of the course of events, that we have stepped up operations in a certain part in the war in Southeast Asia, that we’ve escalated, that’s just not, that’s not what these documents are,” Gibbs said.

Beneath all the huff-and-puff of this major story–a story, one should note, that has suffered no governmental attempt at prior restraint–comes an actual prior restraint out of the D.C. Superior Court.  Mike Scarcella of the Legal Times reports:

A D.C. Superior Court judge on Friday blocked The National Law Journal from publishing information from court records about a regulatory investigation into juice maker POM Wonderful.

An NLJ reporter had legally obtained the information from court files, but the judge, Judith Bartnoff, ruled the records should have been under seal. She issued a temporary restraining order just before the paper’s deadline on Friday to block publication of the information.

Attempts to restrain a publisher are exceedingly rare. But Bartnoff said that the court’s interest in maintaining the integrity of its docket trumped First Amendment arguments. […]

“If I am throwing 80 years of First Amendment jurisprudence on its head, so be it,” Bartnoff said at the hearing. “None of that First Amendment jurisprudence, to my knowledge, is dealing with this issue—the integrity of the functioning of the court system.”

If suppression of a top secret history of the country’s Vietnam war policies for the sake of national security did not overcome the Supreme Court’s heavy presumption against a prior restraint’s constitutionality, I have a hard time seeing how Judge Bartnoff’s justification for suppression–the court’s institutional integrity–can sustain its heavy burden upon appeal.

Read Scarcella’s report here for some great exchanges between the judge and the National Law Journal’s counsel, as well as POM Wonderful’s direct connection to the Pentagon Papers case.

UPDATE 7/30/10: The Legal Times reports that Judge Bartnoff lifted the restraining order this afternoon at POM’s request:

On July 30, just hours after a group of media companies filed an amicus brief in support of the NLJ in the D.C. Court of Appeals, POM’s lawyer moved to have the restraining order withdrawn. Judge Judith Bartnoff lifted the temporary restraining order about 4:30 p.m. Friday.

“Although we believe very strongly in our right to keep confidential documents shielded by attorney-client privilege, we never intended our protected communications with a governmental regulatory agency and a private law firm to become a First Amendment issue,” POM’s counsel, Barry Coburn of Washington’s Coburn & Coffman, said in a statement. “POM is, and always has been, fervent supporters of and believers in the freedom of the press, and takes very seriously its commitment to transparency in all aspects of our business.”

A Speculation Too Far

Posted in Law and Politics by Mike Sacks on July 26, 2010

Jeff Greenfield at CBS News writes of the “possibility” that Obama could replace a conservative justice before 2012:

Now imagine it’s 2011, and the Senate has become more Republican than it is now; And imagine that Clarence Thomas or Antonin Scalia — or Roberts or Alito or even Anthony Kennedy (the “swing justice”) — has to leave the bench. […]

If there is a liberal nominee posed to replace a conservative, we are sure to hear Republicans arguing for the merits of a filibuster, while Democrats attack it as an invalid tactic. We will hear Republicans arguing that ideology is indeed a legitimate ground for voting against a nominee qualified by experience; while Democrats, who once asserted precisely that point, will argue that qualifications and competence are what matters. […]

The potential for gridlock and conflict becomes even greater if we imagine a Republican takeover of the Senate in November; meaning that the Judiciary Committee, and the Senate calendar, would come under the control of Republicans, In that case, try to imagine what kind of nominee Mr. Obama could get confirmed.

I’ve done some speculating on this blog, but Greenfield’s rests in the no man’s land between the patently absurd and entirely plausible.  That is, he’s peddling as possible an abject impossibility for the sake of clever commentary.  Two problems: his observations are obvious, not illuminating; and his starting hypothetical is a non-starter in reality.  Absent an unforeseen death, no member of the Court’s conservative bloc–or Justice Kennedy–is going anywhere in the next two (or even six) years.

Now, we can certainly talk about Obama’s lower court nominations in the next two years should the GOP gain majorities or at least more significant minorities in Congress this November.  And we can talk about whether such a potential change in Congress will impact the list of potential successors to Justice Ginsburg should she retire during Obama’s first term.  But please, no more futile talk of who will replace Scalia in the next two years.

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