by iampunha | 6/13/2008 08:00:00 AM
On June 13, 1966, Miranda rights were born.

On June 13, 1967, Thurgood Marshall was appointed to the Supreme Court.

On June 13, 1971, The New York Times began publishing the Pentagon Papers.

When I plotted out the first two weeks' worth of June's Todays in History (crossposted to this blog as of two days ago), I said to my wife, "Damnit! Why couldn't [today's events] have happened on different days?"

Any one of these events would have invited a thorough diary examining the factors involved in the various decisions, the ramifications of those decisions and the impacts of those decisions on our society.

I hope, and trust, that those who were alive for these events to be news will write something about them, because the significance of each event cannot be overstated.

And because they cannot be overemphasized, because they are such dramatic, society-changing events, there was no need for me to do my usual opening intellectual strip-tease. (Totally doing it tomorrow, though.)

For truth, justice and the American way.

Three anecdotes to start you off, and then I'll get to the meat of this entry, because for me, this is like seeing filet mignon, frozen in time, waiting for me. (More accurately, it is academic pornography. Does this stuff get anyone else excited? Don't answer that.)

Anecdotes about Today in History
Around last April, I saw that former Sen. Mike Gravel, D-Alaska, was coming to my university to speak. I didn't know anything about him, but the press release announcing his visit said he had been a senator from Alaska and that he had introduced the Pentagon Papers into the Congressional Record.

My first half-dozen reactions to that knowledge would not be allowed as blog entry titles here.

Suffice it to say that when I found out (in the release) that he was running for president, I assumed he'd talk, in his speech before us, about the similarities between the Bush White House and the Nixon White House and how his experience in exposing government wrongdoing back in the day would make him well-equipped to deal with the aftermath of the Bush administration.

In his speech, he never mentioned the Papers. I was heartbroken. He spent a lot of time talking about the fair tax and about how people should be more active in government, but I thought he missed a huge opportunity to win friends by talking about taking down Nixon, how Nixon was worse than Bush, etc. He could have started off by talking about bombing an innocent country, the ever-changing goalposts, the shady definitions of winning, all of that, and then said "I am referring, of course, to the actions taken by President ... actually, Presidents Truman, Kennedy, Johnson and Nixon. As a senator in the 1970s, I helped expose the lies, deceit and state-sanctioned murder of thousands upon thousands of Asian civilians and the needless deaths and injuries of thousands of Americans. And I'm determined to stop this government from doing it again, only with a different name and under a different banner. Killing someone because his or her government is communist punishes the civilian and makes the wrong government look bad."

This entry is not about how Mike Gravel failed to use his experience, and the Pentagon Papers, to further his political ambitions. But it is partly about what he did on June 29, 1971:

And on June 29, 1971, even as he was hooked up with a colostomy bag and was hauling two large, black-leather valises, he entered the Senate on a new mission against that war.

“I went onto the floor with the flight bags and put them next to my chair,” says Gravel. “Muskie comes over to me and asks, ‘What the hell have you got there? The Pentagon Papers?’ ”

Maine Senator Ed Muskie was on target. Daniel Ellsberg had given Gravel the top-secret Pentagon study detailing government deception in the Vietnam War, which had been published a few days earlier in The New York Times. But the Nixon Justice Department had then shut down further publication with a prior restraint order.

Without a quorum, Gravel was forced into a basement conference room for an emergency session of his Building and Grounds Committee. Gravel read from the Papers until just after midnight on June 30, when he broke down in tears, emotionally distraught over what his country was doing in Vietnam. He de facto declassified more than 4,000 pages. Later that day, the Supreme Court reversed the prior restraint against all publishers but indicated that they would be at risk if they continued to publish.

A few days ago, a newspaper in South Texas — on the border between Texas and Mexico, and Democratic country thanks to President Bush and his RNC "Brown people are the root of all evil" morons — printed a political cartoon in which a black child, maybe 10 years old, asks his mother at bedtime, "Mommy, could I grow up to be president?"

His mother says, beaming, "Until a few days ago, I wouldn't have known what to say, but yes, you can!"

Much has been written, and what will yet be written will dwarf existing literature, on the significance of a black man as one of the country's two major presidential candidates.

Without men like Thurgood Marshall (and President Lyndon Johnson, for whom a local school is named), publicly supporting minorities carries with it a less credible argument. "If they're so good, why isn't there a Supreme Court justice or something?" is the challenge. "Because the government is littered with racists," is the response. "Or there aren't any blacks smart enough to do the job," is the simple retort.

Justice Marshall, Governor Wilder, Magic Johnson, Jim Brown, vast numbers of civil rights leaders ... these and other people showed that the problem was not the race but the racism. When Shirley Povich took a shot at Washington Redskins owner George Preston Marshall by writing of a Jim Brown touchdown that Brown "integrated the Redskins’ goal line with more than deliberate speed" — Marshall integrated only after the team was threatened with eviction — this was recognition that there was a problem, and it wasn't with the demonized and belittled minority.

One of my duties at work is editing the blotter. This generally consists of fixing things the average person wouldn't notice either way, but it means I'm in touch with the criminal scene. And one of the elements of the criminal scene is when people are read their rights.

Prior to this date in 1966, that was optional. You didn't have to tell a suspect s/he could just remain silent. You didn't have to tell your suspect s/he got an attorney for free, if need be. You didn't have to even verify that your suspect understood what the fuck was going on. All you technically had to have was a warrant for the person's arrest. (I assume the diligent reader will understand that one could be arrested in 1965 in ... certain parts of the country ... without a warrant, without probable cause, etc. "Driving while black" isn't an invention of the 1990s, and "being uppity" was never the official charge, but black people were arrested all the same for demanding to be treated like regular human beings.)

I feel very proud of a justice system sufficiently confident in itself that it treats people with dignity. It allows them to confront their accusers, and it will not put them on the stand against their will. It is a product, certainly, of less lawful times, of fixed systems in other countries, but by Og, if you're going to the station, you're being read your rights, and the criminal justice system is required to ensure you understand those rights. And people have had their convictions overturned because the court found those people were not informed of their rights before they confessed to crimes for which they were faultily convicted.

And that's as it should be. You shouldn't be punished for someone else's inability to explain your rights to you.

There is a pile of history to review on each of today's topics. As none of my alter egos is Shelby Foote or Stephen A. Ambrose, I will not try to painstakingly retell any of the stories myself, inasmuch as far more informed historians have put together far more voluminous and nuanced accounts than I could muster were this my job.

But you need to know, in light of the Bush administration and what it has yet to surprise the American people with (both in terms of tell-all-things-we-already-knew books and "We have always been at war with Eurasia" press briefings), about a little of the Pentagon Papers. And you need to know, partly because of the history involved in Senator Obama's presidential candidacy and partly because of how maligned Johnson was, about this decision of his. And you need to know what it looks like when the Supreme Court upholds the rights of the average person over a government that doesn't give a shit. (Remember when our government gave a shit? Ah, fond memories, my friends.)

So here goes. Are you ready for this? I know I'm not:)

Today in History: The Pentagon Papers

Before Gravel could enter anything into the Congressional Record, he had to have something to enter.

Enter American hero Daniel Ellsberg, Harvard graduate, brilliant man, RAND Corporation employee — and war opposer.

Ellsberg started sneaking documents out in 1968:

His greatest triumph in this line was several leaks in March, 1968, to Neil Sheehan, then a Times reporter, of documents suggesting that the American military leadership had regularly given President Johnson misleadingly optimistic reports about how the war was going. Within two weeks, Johnson announced that he would halt American bombing above the 20th Parallel, begin peace talks, and not run for [re-election]; it looked as if Ellsberg had almost single-handedly engineered the beginning of the end of the war. But the war didn't end, and Ellsberg started down a path that led to the Pentagon Papers.

(That whole article should be required reading for every aspiring high school graduate in America. Too soon we grow old, and too often our required history courses end in or around 1950. Want to know why the current generation can't place the presidents since FDR in order? We never hear about them and what they did.)

What finally ended this double life, and made Ellsberg world famous rather than just well connected, was his decision to leak a seven-thousand-page history of how the Vietnam War was planned, which the Pentagon had prepared for internal use.

Recordings of President Nixon's conversations with the various members of his Cabinet show some pretty interesting reactions. His chief of staff, Gen. Alexander Haig, was unhappy:

Haig: Sir, it, uh – the whole study that was done for McNamara, and then carried on after McNamara left by Clifford, and the peaceniks over there ... This is a devastating – uh, security breach, of – of the greatest magnitude of anything I've ever seen.

His secretary of state, Henry Kissinger, wasn't happy, but he wasn't sad:

Kissinger: In public opinion, it actually, if anything, will help us a little bit, because this is a gold mine of showing how the previous administration got us in there.

Nixon: I didn't read the thing – [unclear] give me your view on that – in – in a word.

Kissinger: It just shows massive mismanagement of how we got there, and it [unclear] pins it all on Kennedy and Johnson.

Nixon was more concerned about possible criminal activity on the part of the Times than, y'know, having inherited a system so amazingly inept:

Nixon: Well you know – uh, [stammering] it may not have the effect they inten – they – the thing though that Henry – that to me is just unconscionable – this is treasonable action on the part of the bastards that put it out.
Kissinger: It's – it's treasonable, there's no question – it's actionable, I'm absolutely certain that this violates all sorts of security laws.

H.R. Haldeman, a man who looks positively principled compared to Dick Cheney, pegged it right for future generations:

Haldeman: Well this thing too is clear, it seems to me it – it hurts us in that it puts the war back up into a high [unclear] tension level, but the facts in it

Nixon: Hurt the other side

Haldeman: Don't hurt us politically so much – they hurt the others – but what they really hurt – and this is what the intellectuals – and why the motivation of the Times must be is that it hurts the government. What it says is – Rumsfeld was making this point this mornoing – what—what it says is – to the ordinary guy, all this is a bunch of gobbledygook. But out of the gobbledygook, comes a very clear thing: [unclear] you can't trust the government; you can't believe what they say; and you can't rely on their judgment; and the – the implicit infallibility of presidents, which has been an accepted thing in America, is badly hurt by this, because it shows that people do things the president wants to do even though it's wrong, and the president can be wrong.
Nixon: Yeah, but on the other hand [unclear] – this is a bunch of God-damn left-wingers who are trying to destroy [unclear]

A few notes:

1) It wasn't against the law, contrary to what Nixon and Kissinger asserted, and the Times and the Post won in court precisely because of that.
2) If you sue because your own documents make you (by proxy) look bad, and the public finds out what its government has been up to, you are so far up shit creek that there do not exist sufficient paddles in this world to save your sorry ass from becoming one with the brown stuff.
3) That Rumsfeld character look familiar? Funny, that. (In a similar episode, Dick Cheney, who had apparently not learned that the Espionage Act of 1917 didn't apply, recommended that the government indict journalists for reporting the truth about shady government practices.)
4) Yes, obviously anyone who is leaking documents that make DEMOCRATS look bad must be a left-winger. And we elected this guy TWICE?

The Nixon administration tried to get the Times to stop publishing the Papers, and it worked for a few days. But they fought the law, and the law won:

Much to their chagrin, of course, after the full hearing on Friday 18 June, Gurfein issued a ringing opinion withdrawing the temporary order, writing that “A cantankerous press, an obstinate press, an ubiquitous press, must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know. These are troubled times. There is no greater safety valve for discontent and cynicism about the affairs of government than freedom of expression in any form.... No cogent reasons were advanced as to why these documents except in the general framework of embarrassment... would vitally affect the security of the nation.”

At the very moment that Gurfein was holding his full hearing on Friday, 18 June, the Washington Post came out with its first publication of the Papers, obtained from Daniel Ellsberg by Post editor Ben Bagdikian while the Times was enjoined from publishing. So the government went to court in Washington D.C., before District Judge Gerhard Gesell. At one point in the Washington case, the government tried to submit a sealed affidavit to Gesell (from National Security Agency director Admiral Noel Gayler) while claiming it was too secret to show the Post’s attorneys. As William Glendon relates, Gesell told the government if the document was too secret to share with the Post, it was too secret to share with the court. Gesell ultimately ruled against any injunction, and the U.S. Court of Appeals for the District of Columbia agreed with him; but the Second Circuit Court of Appeals overturned Judge Gurfein’s ruling; and the case rocketed to the U.S. Supreme Court.

Here are the Pentagon Papers, by the way. Well, about 2,000 of the 7,000 pages, rather.

Haldeman was right, of course, that the American people would not easily trust a president to abide by the rules. (However, I think as many people came to that conclusion because of Watergate as because of the Papers, which after all didn't indict Nixon so much as show that the government's handling of the Pacific Theater after World War II was 18 different kinds of screwy.) President Ford sold his credibility when he pardoned Nixon, Reagan testified that he had no clear recollection of any credibility, and Bush the Dumber never met a rule he couldn't handle Animal Farm style: All votes are equal, but some are more equal than others.

Today in History: Miranda v. Arizona

This case combines elements of two previous Todays in History: Johnson's Great Society, and a massive helping of Brown v. Board.

The Great Society program (or programs) established a series of social programs and acts that have shaped our society since the 1960s in ways many of us (me included) simply can't comprehend. We do not know a world before Medicare or Medicaid, and we do not know a world before Miranda rights. The Great Society link is harder to trace, but the case history is out there for all to see.

Miranda is similar to Brown in two ways I discussed in my diary on the subject. First, as with Brown's status as one of many in a long line of legislation, the rights constitutionally required in Miranda came about in part because of Gideon V. Wainwright and Escobedo v. Illinois:

(c) The decision in Escobedo v. Illinois, 378 U.S. 478, stressed the need for protective devices to make the process of police interrogation conform to the dictates of the privilege.

Also, part of Chief Justice Warren's opinion, which shows in my humble opinion why Escobedo was essential both to secure fair trials and lawful treatment of suspects and to provide the framework from which Miranda could logically proceed:

We dealt with certain phases of this problem recently in Escobedo v. Illinois, 378 U.S. 478 (1964). There, as in the four cases before us, law enforcement officials took the defendant into custody and interrogated him in a police station for the purpose of obtaining a confession. The police did not effectively advise him of his right to remain silent or of his right to consult with his attorney. Rather, they confronted him with an alleged accomplice who accused him of having perpetrated a murder. When the defendant denied the accusation and said "I didn't shoot Manuel, you did it," they handcuffed him and took him to an interrogation room. There, while handcuffed and standing, he was questioned for four hours until he confessed. During this interrogation, the police denied his request to speak to his attorney, and they prevented his retained attorney, who had come to the police station, from consulting with him. At his trial, the State, over his objection, introduced the confession against him. We held that the statements thus made were constitutionally inadmissible.

In addition, Miranda combined four cases:

In 1965, the Supreme Court of the United States agreed to hear Miranda's case. At the same time, the Court agreed to hear three similar cases, Vignera v. New York, Westover v. United States, and California v. Stewart. The Court combined the four cases. Since Miranda was listed first among the four cases considered by the Court, the decision came to be known by that name. The decision in Miranda v. Arizona was handed down in 1966.

Now, having case history support logical progressions of the law is hardly new. In fact, it's kind of incredibly old (as old things go in this country). And the case history of the rights of the accused starts, from what I can tell, around the time of the case history of the rights of black people to get an education equal to that of white people:

In 1933 the NAACP undertook Hocutt v. Wilson, the first test case involving segregation in higher education. The plaintiff was Thomas R. Hocutt, a student at the North Carolina College for Negroes, who had been denied admission to the University of North Carolina's School of Pharmacy.

This one year after Powell v. Alabama.

One last point about Miranda. The point of contention in that case was not the accused's innocence. Ernesto Miranda was not a nice guy. He's one of those people who prevailed before the Court, but you don't really hold him in high (or any) esteem even so. As with Brandenburg, Miranda is an important case, but the victor ain't on anyone's list of eligible bachelors.

Miranda spent 11 years in jail for the crimes he committed on the evening of March 2, 1963. He was guilty. But the police, SCOTUS found, violated Miranda's civil rights when they questioned him without allowing him counsel and without advising him of the rights we now know by his last name.

(A bit of "Good Lord, I didn't want to know that" for you from that site:

Physicians told police that Patty had traces of semen inside her, but disputed the girl’s claim that prior to the assault she had been a virgin.
First, one brother-in-law told investigators, Patty was somewhat emotionally disabled, having a measured intelligence of a 12- or 13-year-old.

If she wasn't a virgin, someone else had raped her first, as — based on my limited knowledge of sexual assault law — those who lack the mental capacity to consent to sex cannot legally speaking engage in sexual intercourse without its legally being defined as rape.

And if she was a virgin, ... imagine a man in a position of authority examining you after you've been raped, and imagine telling him you were a virgin, and imagine he doesn't believe you.

Nobody ever said the truth was fun, but it's better than not knowing.)

Today in History: Thurgood Marshall

This, I think, more than the other two stories today, is the one people love. A man who was rejected by the University of Maryland Law School later sued the school, arguing for someone else's right to attend, and won. A man who argued so convincingly before the Supreme Court (close to 30 victories) that he was something of a natural fit for their number, and Lyndon Johnson recognized that in 1967.

Thurgood Marshall's story resonates with me because it begins as mine began: conflicted, and heavily steeped in education. Where my mother punished me by making me write long (for a 5-year-old) essays on why I shouldn't have done [whatever], Thurgood Marshall was punished by having to read and memorize the Constitution:

As a punishment in school, Thurgood was sent to the school basement to memorize the United States Constitution. He was confused because some of the ideas in the Constitution were not true in his life. His father said the Constitution was about the way things should be, not the way things were.

We might grudgingly owe a debt of gratitude to the University of Maryland Law School for rejecting Marshall (edited to remove carriage returns):

After graduation, Marshall pursued admission to law school. His first choice was the University of Maryland Law School. Marshall’s application to Maryland was rejected because of the University’s “all-white” admission policy. So, he matriculated at Howard University Law School in Washington, D.C. It was at Howard where Marshall met Charles Hamilton Houston, then Dean of the law school. Houston was Marshall’s mentor until his death in 1950. As the Dean of the law school, Houston emphasized to Thurgood and other students that lawyers should be social engineers. It was Dean Houston who taught Marshall the strategy of using existing laws to defeat racial discrimination.

Interestingly, Marshall comes up twice in Miranda: once in the case itself, and again in a case that preceded it. In Miranda, the man, then solicitor general of the Unites States, argued his employer's side in the SCOTUS case:

Arguing the position of the United States government, dressed in the traditional gray striped pants and morning coat, was Solicitor General Thurgood Marshall, the former NAACP attorney who successfully argued the Brown v. Board of Education case and who would later be the nation’s first black justice. Marshall’s job was to state the position of the U.S. Attorney General and the government of the United States on questions involving Constitutional matters.
The last man to present a position in the case before the court was Thurgood Marshall, whose personal opinions were diametrically opposed to the position of his employer, the U.S. government."

And 26 years earlier, as an NAACP lawyer, Marshall "and his team of lawyers persuaded the Supreme Court to overturn a criminal conviction based on a coerced confession."

Shelley v. Kramer, another case Marshall worked for the NAACP, ended up as the reason for one of the "When Jackie debuted, this ridiculousness was still around" points in my Negro Leagues diary. (I'm convinced that in a month, a quarter of the links in my blog posts will be to other pieces I've written or to sources I've used before.)

An interesting coincidence presents itself in the language President Johnson used in nominating Thurgood Marshall for the Supreme Court. First, this:

For example, when he was asked for a definition of "equal" by Justice Frankfurter, Marshall replied, "equal means getting the same thing, at the same time and in the same place” (Brown v. Board of Education, 349 U.S. 294 (1955)).

Twelve years later, Johnson said that "appointing Thurgood Marshall was 'the right thing to do, the right time to do it, the right man, and the right place.'"

Still jonesing for some Marshall goodness? Read more. It's on me — and his family (PDF).


Mike Gravel discusses how the Pentagon Papers came to be released:

Daniel Ellsberg talks about the Pentagon Papers:

A Thurgood Marshall interview with Mike Wallace (some portions missing):