Legal History

What LBJ Did Not Know and Why He Did Not Know It?

By C. Evan Stewart

    The Cuban Missile Crisis in October 1962 was surely John F. Kennedy’s finest hour.  Although he undoubtedly played a role in encouraging Nikita Khrushchev’s reckless gamble to place nuclear missiles in Cuba (e.g., the Bay of Pigs fiasco, his quite unsuccessful summit meeting with the Soviet Premier, Operation Mongoose – his administration’s covert operation to topple (and even kill) Castro), President Kennedy’s cool hand led to the ultimate resolution of that potential nuclear Armageddon.

    The lesson supposedly learned by the crisis (and that was first detailed in a contemporaneous article by Stewart Alsop and Charles Bartlett in the Saturday Evening Post (“In Time of Crisis”) (December 8, 1962); John and Robert Kennedy were clearly the sources for much of this inside-the-crisis piece) was that President Kennedy had gone “eyeball to eyeball” with the Soviet Union and had prevailed by showing “resoluteness, restraint, and controlled escalation of force,” which caused Moscow “to capitulate.”

    Lyndon Johnson, once he became President, believed that that was indeed the lesson of the Cuban Missile Crisis.  And aided by the same advisors who helped President Kennedy in the Missile Crisis, President Johnson sought to apply that lesson to the Vietnam imbroglio he inherited on November 22, 1963, one month after the overthrow and assassination of South Vietnam’s President Ngo Dinh Diem (which had been aided and abetted by the Kennedy Administration).  In December 1964, for example, powerful Washington columnist Joseph Alsop wrote in the Washington Post:  “For Lyndon B. Johnson, Vietnam is what the Cuban missile crisis was for John F. Kennedy.  If Mr. Johnson ducks the challenge, we shall learn by experience about what [it] would have been like if Kennedy ducked the challenge in October, 1962.”  According to one of President Johnson’s key aides, the just-elected President hit the roof when he read those words; as he later told one of his biographers (Doris Kearns), if he “lost” South Vietnam to communism the person most vociferous in attacking him would be Robert F. Kennedy, claiming that President Johnson had “betrayed John Kennedy’s commitment to South Vietnam….  That I was a coward.  An unmanly man.”

    The Saturday Evening Post article later became even more enmeshed in history by Robert F. Kennedy’s Thirteen Days:  A Memoir of the Cuban Missile Crisis (W.W. Norton, 1969).  That book, based upon Robert Kennedy’s diary and written and published posthumously by Theodore Sorensen, is (in the words of the leading historian of the Missile Crisis) “undoubtedly… the most influential book on the missile crisis.”  Unfortunately, it is materially wrong on a multitude of fronts.  The only error this article will focus on is what did President Johnson not know about the Missile Crisis and why he did not know it.

The Trollope Ploy

    Anthony Trollope was a nineteenth-century British novelist.  He employed a plot device in which a woman overly eager to be wed accepts a casual remark by a man to be a marriage proposal.

    At the height of the crisis, on Friday, October 26, Khrushchev sent President Kennedy a letter that was very emotional and appeared to have been penned by the Soviet leader himself; in the letter, Khrushchev offered to remove the missiles from Cuba if America publicly pledged not to invade the island.  The following day, a letter much more formal (and thus likely to have been the product of many hands in the Kremlin) arrived demanding an additional term:  that the U.S. withdraw its Jupiter (nuclear) missiles from Turkey.

    According to Alsop, Bartlett, and Thirteen Days, Robert Kennedy supposedly suggested accepting the terms of the first letter and ignoring the terms of the second; the inspired strategy became known as the Trollope Ploy.  And according to Robert Kennedy (and agreed to and promoted by numerous Kennedy men over the years:  McNamara, Schlesinger, Rusk, Bundy, Sorensen, etc.), this strategy worked.  It saved the world from a nuclear holocaust and underlined the “lesson” to be learned from the Missile Crisis.  But that is not what really happened, and so the “lesson” learned was not in fact the right one.

    It is true that almost to a man the famous ExComm (the group of advisers President Kennedy assembled to assist him in the crisis) did not want to agree to the October 27 letter’s additional demand.  But the most important person in the room – President Kennedy – thought differently.   On tape recordings the President made of ExComm meetings, he said:  “most people will regard this [trade] as not an unreasonable proposal.”  The President added that those same “people” would not think the U.S. would be justified in attacking Cuba after Khrushchev had said: “‘If you get yours out of Turkey, we’ll get ours out of Cuba.’  I think you’ve got a very tough one here.”  He went on to say:  “Let’s not kid ourselves.  They’ve got a very good proposal….”  As a result, the President directed the ExComm to be “thinking about what our position’s gonna be on this one [the October 27 letter], because this is the one that’s before us and before the world.”  The man with the ultimate responsibility had already reminded his colleagues (and the Joint Chiefs) that “You’re talkin’ about the destruction of a country” (if the Cuban missiles were fired at the United States and an all-out war began).  

    In the face of the opposition of virtually all of his advisers (except for Adlai Stevenson, who had earlier suggested a missile swap and later was accused of advocating another “Munich” in the Alsop & Bartlett article), President Kennedy convened a rump session of the ExComm at 8 p.m. on October 27 in the Oval Office.  Present were President Kennedy, Robert Kennedy, Dean Rusk (Secretary of State), Robert McNamara (Secretary of Defense), Sorensen (White House Counsel), McGeorge Bundy (National Security Adviser), George Ball (Undersecretary of State), Llewellyn Thompson (former Ambassador to the U.S.S.R.), and Roswell Gilpatric (Undersecretary of Defense); excluded from the rump session were General Maxwell Taylor (Chairman of the Joint Chiefs of Staff), C. Douglas Dillon (Secretary of the Treasury), John McCone (Director of Central Intelligence), and Lyndon Johnson.  President Kennedy informed the group that he was about to send Robert Kennedy to meet with Soviet Ambassador Anatoly Dobrynin.  President Kennedy continued to see a missile swap as the way out, even though all of his advisers in attendance (including Robert Kennedy) were against it.  Finally, Dean Rusk suggested that Robert Kennedy tell Dobrynin that a public quid pro quo for a missile swap was unacceptable, but that the Jupiter missiles would be removed at some future point if the Cuban missiles were removed.  McGeorge Bundy later wrote that Rusk’s proposal was quickly supported by those in attendance and Robert Kennedy was authorized to convey those terms to the Russian Ambassador.  Bundy also later wrote: “It was also agreed that knowledge of this assurance would be held among those present and no one else.”  The secrecy held until 1989.
    Robert Kennedy, even though he still wanted “to take Cuba back,” dutifully delivered his brother’s message that evening.  The deal was quickly agreed to by Khrushchev, who announced to the world on October 28 that the U.S.S.R. would remove its missiles from Cuba.  The next day, Dobrynin delivered to Robert Kennedy a letter from the Soviet Premier detailing the terms of the two countries’ agreement; included was reference to the U.S.’s “secret commitment” to remove the Jupiter missiles.  Robert Kennedy, after consulting with his brother, returned the letter to Dobrynin.

    According to the Russian ambassador, Robert Kennedy told him that “some day – who knows? – [I] might run for president”; as such, he could not “risk getting involved in the transmission of this sort of letter, since who knows where and when such letters can surface or be somehow published – not now, but in the future – and any changes in the course of events are possible.  The appearance of such a document would cause irreparable harm to my political career in the future.”

The Aftermath of the Horse Trade

    President Kennedy publicly cautioned those in his administration not to gloat over the Soviet’s “capitulation.”  At the same time, he sanctioned the Saturday Evening Post article and bragged to his close friends that he had “cut [Khrushchev’s] balls off.”  He also went to great lengths to cover up any suggestion that he had traded the Jupiter missiles in Turkey for the Soviet missiles in Cuba. Furthermore, Bundy publicly denied any trade had taken place; the State Department officially confirmed to the Turkish government that the Jupiter missiles had not been swapped in order to resolve the crisis; and, most tellingly, Rusk and McNamara both lied under oath before the Senate Foreign Affairs Committee (Rusk – in response to a question that he affirm that a “deal” or “trade” had in “no way, shape or form, directly or indirectly been connected with the settlement… or had been agreed to – testified:  “That is correct, sir.”) (McNamara – in response to a similar question – testified:  “Absolutely not … the Soviet Government did raise the issue… [but the] President absolutely refused even to discuss it.  He wouldn’t even reply other than that he would not discuss the issue at all.”)  Notwithstanding, and on McNamara’s October 29 order, the Jupiter missiles were directed to be destroyed (the Defense Department’s General Counsel John McNaughton, implementing the order, barked:  “Those missiles are going to be out of there by April 1 if we have to shoot them out!”); the process was quietly completed within six months.

    In January 1989, at a conference in Moscow on the Cuban Missile Crisis (which the Soviets called the Caribbean Crisis), Dobrynin publicly dismissed the notion that Robert Kennedy had resolved the crisis by giving him an ultimatum on October 27 (the Thirteen Days account), and challenged the U.S. officials who knew better to fess up.  Apparently shamed, Theodore Sorensen stood up and said he had “a confession to make to my colleagues on the American side, as well as to others who are present”:

    I was the editor of Robert Kennedy’s book.  It was, in fact, a diary of those thirteen days.  And his diary was very explicit that this [the missile swap] was part of the deal; but at the time it was still a secret even on the American side, except for the six [sic] of us who had been present at the meeting.  So I took it upon myself to edit that out of his diaries.

Are We Sure President Johnson Did Not Know?

    The answer to the captioned question is:  yes.  Of course, it is not unusual for Presidents and their aides not to share information with vice presidents (e.g., Franklin D. Roosevelt and Harry Truman).  But what about when the vice president succeeds to the presidency by death and the secret information relates to national security?  In April 1945, for example, the first thing Secretary of War Henry Stimson did was to tell President Truman about the top-secret nuclear bomb.

    Robert Kennedy, of course, loathed and detested Lyndon Johnson, even before he became President; and the fact that he succeeded his slain brother only made matters worse for that “relationship.”  So it is hardly a surprise that Robert Kennedy did not tell President Johnson.  But what about the men at the center of American foreign policy – Rusk, McNamara, Ball, and Bundy – all of whom stayed on in the Johnson Administration and (with the exception of Ball) were enthusiastic advocates of escalating the Vietnam conflict into what became known as “McNamara’s War”?

    After Sorensen’s 1989 disclosure, Professor Barton Bernstein interviewed each of those men and asked whether any of them had told President Johnson.  Each said “no.”  And Bundy went even further, telling Bernstein that President Johnson did not know.  Why was Bundy so sure?  Because there are two White House tape recordings of President Johnson and Bundy discussing the Cuban Missile Crisis in the context of the escalating Vietnam conflict.  As President Johnson was openly musing about President Kennedy’s tough brinksmanship in opposition to Khrushchev’s gamble, Bundy (after a few “uh-huh[s]”) said:  “I’ve always thought that the prospect of invasion had more to do with the solution than any other one thing.  I couldn’t prove it, but I just think that it looked awful imminent….”

    So why did these men (and the others privy to the secret deal) not tell President Johnson?  There would appear to be two reasons:  first, loyalty to President Kennedy and the assassinated leader’s Camelot image in history; and second, loyalty to Robert Kennedy’s political ambitions (and certain run for the presidency).  That such notions of loyalty trumped our national security interests is (at a minimum) very troubling.

Would It Have Made A Difference?

    Counterfactual history is just that.  But it is clear President Johnson was concerned about Robert Kennedy coming at him over Vietnam from the right (as opposed to the left).  And in fact, before Robert Kennedy reversed his position on Vietnam (from strong hawk to passionate dove), he invoked the Missile Crisis’s “lesson” when he said, on February 17, 1966, that North Vietnam “must be given to understand … that their present public demands are in fact for us to surrender a vital national interest – but that, as a far larger and more powerful nation learned in October of 1962, surrender of a vital interest of the United States is an objective which cannot be achieved.”

    After the secret deal was outed in 1989, Robert McNamara – as part of his desperate public attempts at saying he was “sorry” for his role in the Vietnam War – contended that it was “highly probable” that President Kennedy would not have escalated Vietnam into a full-scale war, citing his willingness to trade the Jupiter missiles in 1962.  Easy to say, in retrospect (but if President Kennedy “would have,” why would President Johnson (the consummate horse-trader) also not have done so? – If he had known?).  What was Sorensen’s (one of President Kennedy’s principal hagiographers until the day he died) view?:  “Very possibly … an earlier disclosure of JFK’s assurance to Khrushchev regarding the missiles in Turkey would have slowed down LBJ’s … plunge in Vietnam, but I doubt it.”  Of course, we will never know.

Postscripts

•    After Sorensen’s 1989 admission, Bundy acknowledged that “[s]ecrecy of this sort has its costs.  By keeping to ourselves the assurance on the Jupiters, we misled our colleagues, our countrymen, our successors, and our allies.  We allowed them all to believe that nothing responsive had been offered….”  Bundy’s biographer (Kai Bird) thus concluded:  “[P]eople were allowed to think the great lesson of the missile crisis was that ‘unwavering firmness’ had carried the day.  The appearance of uncompromising toughness in facing down a Soviet threat may have aided Kennedy politically, but it also sent a message to the American people that a confrontational policy against communists was necessary at all times.  This, in turn, would make it harder for Kennedy and his successors to have any flexibility in dealing with the Soviets, or for that matter, such other communist adversaries as the North Vietnamese.”

•    Had the non-public quid pro quo not worked, according to Dean Rusk (but unbeknownst to the others), President Kennedy had authorized him to utilize Andrew Cordier (a dean at Columbia University and former U.N. official) to approach U Thant (the U.N. Secretary General) and have the quid pro quo be a U.N. proposal that would allow the Soviets to save face.  Although all of his advisers had opposed a public swap of the missiles, President Kennedy wanted to do everything he could to avoid nuclear war.

•    Many historians have hailed the ExComm meetings as the quintessential exemplar of crisis management; but the White House tapes of the meetings show them to be (in the words of Professor Bernstein) “desultory, spastic, and often inchoate.”  President Kennedy, in fact, later told John Kenneth Galbraith: “You have no idea how much bad advice I received in those days.”

•    The best sources for those who wish to pursue this subject further are:  Sheldon M. Stern, The Cuban Missile Crisis in American History:  Myths Versus Reality (Stanford 2012); Max Holland & Tara Marie Egan, What Did LBJ Know About the Cuban Missile Crisis?  And When Did He Know It? (Washington Decoded October 19, 2007); Eric Alterman, When Presidents Lie:  A History of Official Deception and Its Consequences (Viking 2004).

IP Law

Images of Harassment: Copyright Law and Revenge Porn

By Ari Ezra Waldman

    Nonconsensual pornography, commonly known as “revenge porn,” usually occurs when an individual (usually a man) publicly posts online sexually explicit images of his former partner (usually a woman). Although normally the stuff of tort law, revenge porn offers copyright attorneys opportunities to help victims, as well: the offending images are often selfies taken by the victim and thus covered by the victim’s copyright. There is, to date, no Second Circuit case law on the subject, making this area uniquely suited to creative social impact litigation. Until state legislatures or Congress pass well-drafted criminal revenge porn statutes, copyright law remains a necessary though inadequate weapon to combat revenge porn in the Second Circuit and elsewhere.

The Problem of Revenge Porn

    Revenge porn is a particularly devastating invasion into a private, intimate sphere of life not merely because of the sexually explicit content of the images, but because those images are posted online for all to see. In her book, Hate Crimes in Cyberspace, Danielle Citron tells us about Holly Jacobs: In 2011, Holly, then a doctoral student living in Florida, clicked on a link sent to her by an anonymous tipster and found nude photographs of herself and video from a webcam session, which her ex-boyfriend had surreptitiously recorded. A Google search revealed that these images, along with her name, email address, screen shots of her Facebook page, her work address, and other personal information, appeared on hundreds of websites, including one that arranged sexual encounters. She started receiving frightening emails, some of which threatened physical violence while others threatened to send the nude images to her boss unless she paid handsomely. Law enforcement offered no help, telling her that it was her own fault for sending nude pictures to her ex-boyfriend. She tried contacting every website she could find that hosted her images, demanding they take them down. Few complied. She changed her name to escape.

    The digital dimension of Holly’s victimization is salient: the Internet offers perpetrators a free and permanent weapon to harass their victims. Even if images are eventually taken down, links, copies, downloads, and blog posts create an intricate web history that anyone – future employers, future love interests, parents – can find with a simple Google search. It creates, as Holly said, a sense of “terror.”

The Role of the Copyright Attorney

    Current law puts up hurdles in front of victims like Holly. First, Communications Decency Act (“CDA”) Section 230 immunizes revenge porn sites from tort liability. As platforms for content provided by others, websites that host images of revenge porn can take advantage of the broad immunity Congress, as interpreted by the federal courts, has granted to all websites. The few cases to the contrary – Fair Housing Council v. Roommates.com and Sarah Jones v. Dirty World Entertainment – are of little help because they require that websites have a substantial role in creating content themselves. Second, tort law is often inadequate to seek redress from the perpetrators themselves. A successful public disclosure of private facts claim, for example, requires a plaintiff to show that the information at issue (the sexually explicit image) was indeed private. But courts too often confuse sending an image to one person, even a partner in a relationship, with general revelation that extinguishes expectations of privacy. What’s more, tort cases are expensive and pose particular problems of proof when anonymous actors are involved.

    However, reproduction and display of an individual’s copyrighted images constitutes copyright infringement, so copyright law gives revenge porn victims the tools to take down offending images. CDA §230 does not immunize websites from copyright claims, and if victims like Holly want above all else to remove the images from the Internet, the Online Copyright Infringement Liability Limitation Act’s notice-and-takedown procedure (Section 512) may offer a promising avenue for relief.

    Authors of published and unpublished works retain the same exclusive rights under Section 106 of the Copyright Act. By definition, those participating in uploading, copying, and trafficking in revenge porn violate the Section 106 exclusive rights of victims: those who post images on websites create copies; websites make copies to store on servers and display copies of the original images on the web. And, as the Supreme Court stated in Stewart v. Abend, 495 U.S. 207 (1990), the Copyright Act necessarily includes a right not to publish: victims have chosen not to publish their own images, an exclusive right violated by their harassers in the revenge porn business. Victims can also use Section 512 to require removal of sexually explicit images for which they retain a copyright. They can also send de-indexing requests to search engines like Google and Yahoo.

Why Criminalization?

    Still, copyright law is an inadequate response to revenge porn. Often, the sexually explicit images posted online are not selfies and the copyrights do not belong to the victims. Even if they do, following a notice-and-takedown procedure is not easy, either, particularly if the website is hosted abroad and not willing to comply with victims’ requests. Hiring a lawyer to help is prohibitively expensive for most victims. Some argue that using copyright law to combat revenge porn also lacks the necessary expressive effect of either a tort or criminal law response. Revenge porn is an abusive invasion of personal inviolability, a stain on the social fabric of modern digital society. As such, it merits a response strong enough to create and maintain the social norm that revenge porn is not simply wrong because it amounts to stealing. Rather, it is wrong because it devalues, demeans, and subjugates its victims as sexual objects. Copyright law, arguably, does not meet that standard.

    That is why several scholars, advocates, and policy makers have proposed reasonable and narrowly tailored criminal revenge porn laws that will punish harassers and deter future conduct while protecting important free speech rights. Until then, however, copyright law must remain an important tool in what must be a multi-weapon arsenal.

    Editors’ Note: The author is an associate professor of law and director of the Innovation Center for Law and Technology at New York Law School.