On this day in 1971, the Supreme Court by a 6-3 majority ruled that the US government could not stop the publication of the Defense Department’s “History of U.S. Decision-Making Process on Viet Nam Policy,” better known as the Pentagon Papers.

The short per curiam opinion merely “held that the Government had not met that burden” required for such restraints on the press. Some of the concurrences went into greater detail on the inadequacy of the government’s claims, particularly its minatory generalities on the subject of “national security.”

Justice Black:

The word “security” is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.

Justice Douglas:

The Government says that it has inherent powers to go into court and obtain an injunction to protect the national interest, which, in this case, is alleged to be national security….

A debate of large proportions goes on in the Nation over our posture in Vietnam. That debate antedated the disclosure of the contents of the present documents. The latter are highly relevant to the debate in progress.

Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health.

Justice Brennan:

The entire thrust of the Government’s claim throughout these cases has been that publication of the material sought to be enjoined “could,” or “might,” or “may” prejudice the national interest in various ways…. Even if the present world situation were assumed to be tantamount to a time of war, or if the power of presently available armaments would justify even in peacetime the suppression of information that would set in motion a nuclear holocaust, in neither of these actions has the Government presented or even alleged that publication of items from or based upon the material at issue would cause the happening of an event of that nature.

Justice Stewart:

… under the Constitution, the Executive must have the largely unshared duty to determine and preserve the degree of internal security necessary to exercise that power successfully. It is an awesome responsibility, requiring judgment and wisdom of a high order. I should suppose that moral, political, and practical considerations would dictate that a very first principle of that wisdom would be an insistence upon avoiding secrecy for its own sake. For when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion. I should suppose, in short, that the hallmark of a truly effective internal security system would be the maximum possible disclosure, recognizing that secrecy can best be preserved only when credibility is truly maintained.

Taking these excerpts as statements as much of basic political philosophy as of law, it appears that to at least five of the Justices in 1971, the use of a general claim that national security requires secrecy posed a presumptive threat to American democracy, and ought to be viewed with the greatest suspicion.