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.”
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.
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.
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.
… 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.
25 comments
June 30, 2008 at 12:53 pm
Walt
Can’t we have This Day in Pony History instead?
June 30, 2008 at 1:09 pm
eric
Are you accusing us of ignoring the Good News from the Nixon Presidency?
June 30, 2008 at 1:11 pm
PorJ
The Nixon Administration’s ridiculous gambit was a long-shot on so many counts; remember, the content in the Pentagon Papers was entirely historical and ended before Nixon was even inaugurated. It was a (relatively) easy call in that it was all history and many of the actors were no longer involved in policy or the war. I’m also not so sure that its legacy (beyond the Plumbers & Watergate) is entirely beneficial. Instead of prohibiting publication, what we get today is the President inviting the editor & publisher of the New York Times to lunch in order to personally persuade them to hold a story (the wiretap story in 2004-2005). Wouldn’t we all have been better off had the Bush Administration attempted prior restraint, which then (presumably) would have caused the Times to get indignant and go ahead with the story – before the election of 2004?
June 30, 2008 at 1:15 pm
eric
remember, the content in the Pentagon Papers was entirely historical and ended before Nixon was even inaugurated
We know, PorJ.
what we get today is the President inviting the editor & publisher of the New York Times to lunch in order to personally persuade them to hold a story (the wiretap story in 2004-2005)
The editor and publisher of the NYT don’t have to go, and don’t have to be persuaded. It doesn’t strike me as harmful to have the PP decision on the record.
June 30, 2008 at 1:15 pm
urbino
This is the kind of thing I had in mind in my response to Vance’s self-correction, elsethread. Was there not a time when these political principles and others like them were taken almost for granted as the most fundamentally American thing about America — the sine qua non — or is that just a primitivist fantasy of mine?
June 30, 2008 at 1:30 pm
PorJ
The editor and publisher of the NYT don’t have to go, and don’t have to be persuaded.
How many times in the future do you think a president will fail to personally dissuade a news organization from publishing? You need lots and lots of profits to demonstrate independence from the government (and pay attorney’s fees, and face ensuing regulatory battles, etc.). I guess I’m just noting that the Pentagon Papers represents a particularly lucky confluence of variables: it occurred after Nixon signed the Newspaper Preservation Act (1969), making newspapers much more profitable than they were just a decade before, and when there existed only 3 TV networks. Making lots of money – and challenging the government – was easy for media organizations. Plus Nixon was paranoid and courted confrontation with the media (“The Powers That Be”). That world is gone, and it appears to me that the Republicans learned more from the episode than the media.
June 30, 2008 at 1:34 pm
CharleyCarp
Eric, you should take a look at the decision today from the DC Circuit in Parhat v. Gates.
Click to access 06-1397-1124487.pdf
Some folks never learn.
June 30, 2008 at 1:49 pm
CharleyCarp
pp 27-30 specifically.
June 30, 2008 at 2:01 pm
Vance Maverick
Urbino, I did see that. On thinking it over a bit, my response is to wonder what difference it makes. Suppose there was a good-old-days in which we held these truths to be self-evident. Does that help us improve matters now? I think not — rather, it vitiates any effort at improvement, because it makes it seem that no mere political change will suffice, because the whole cultural fabric must be changed seamlessly first.
June 30, 2008 at 2:05 pm
Vance Maverick
Besides which, note that this decision, while not a 5-4 split, was not unanimous.
June 30, 2008 at 2:50 pm
Robert Halford
As always with this blog, this is a great discussion. But this sentence is a bit misleading:
“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.”
That was true of Black and Douglas, but it was certainly not true of either Stewart or Brennan. The point of the the Stewart concurrence is to make clear that Stewart thinks that the Courts and Congress, in general, have no independent role whatsoever in examining the executive branch’s classification designations. The language you quote from Stewart’s concurrence in the post is essentially a fig-leaf in the middle of an opinion that says the executive branch has the sovereign right to classify sensitive information at will.
Likewise, the point of Brennan’s concurrence is specifically to limit the PP decision’s scope. Brennan makes clear that the Court’s ruling applied only in the case of a prior restraint where the Gov’t can make no showing of harm — that is, a prepublication injunction where the Government doesn’t have any plausible argument about an immediate threat to national security based on the publication of the material.
Note that Black and Douglas were, then as today, outside the mainstream of first amendment jurisprudence on this issue. Also note that it is highly likely that the current right-leaning Supreme Court would reach the same conclusion given the particularly egregious set of facts in the PP case.
In general, the federal courts both were in the 1970s — and are today — generally very supportive of the executive branch keeping important security-related material classified and out of the public’s hands. There was no golden age of national security sunshine on the Supreme Court.
June 30, 2008 at 3:03 pm
eric
Rob, doesn’t Stewart conclude by paraphrasing the basic per curiam finding—that the gov’t has not met the necessary burden? He says, “I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to our Nation or its people.” So isn’t his point that the bar is higher than simple, vague claims of national security?
Which is what you seem to say about Brennan’s point—”the Government doesn’t have any plausible argument about an immediate threat to national security.”
Which is the position I was trying to sum up in the sentence to which you object: “a general claim”—”general” being my effort to summarize all the various objections to vagueness, or implausibility”—about a threat to national security being suspicious.
I don’t think that amounts to a “golden age,” but it does amount to a higher standard than we seem to have now.
June 30, 2008 at 3:27 pm
Robert Halford
The point of the Stewart concurrence is who sets the bar — is it the Courts, is it Congress, or is it the executive branch acting in its own supposedly “sovereign” sense of what needs to be kept secret and what doesn’t? Stewart is basically saying that, hey, while I’m personally a reasonable guy who believes in openness, in theory, deciding what’s reasonably classified and what isn’t is no place for the Court or Congress to get involved and at the end of the day the President should be able to decide what’s secret. Except on the facts of this case, in which, because the government’s showing of potential harm is SO weak, Stewart can’t see fit to granting an injunction to prevent publication. It’s all kind of concern-trollish, actually.
Brennan’s making a similar point — the problem here is not that the Government’s classified something that shouldn’t be classified, but that there’s not a sufficient showing of harm for an injunction. The implication is that if the Government could make any plausible case for harm, it might be reasonable to issue the injunction.
The lesson you take away if you’re the government — come up with some semi-plausible story about why harm will befall the nation if the secret gets out before trying to prevent publication of purely retrospective material. Guess what — that’s pretty easy to do.
More broadly, I disagree that today’s Court would have reached any different conclusion if the specific facts of the pentagon papers case was before it, so I tend to disagree that there was a higher standard coming from the Supreme Court in 1971 on this issue then there is now. That’s a question that can’t really be answered. But first amendment jurisprudence on this particular issue is more pro-liberty now than it was in 1971, in part due to fall-out from the Nixon administration, the law has solidified in favor of the prohibition on prior restraint rule, and if I had to take a bet I would wager that the historical/first amendment import of the prior restraint rule would cause at least Scalia, Thomas, Kennedy, and Souter to side with the NYT, together with Ginsburg and Stevens.
Also note that statutory law today is much more pro-disclosure than it was in 1971, thanks to the post-Watergate revisions of FOIA. Of course, none of this changes the fact that the Bush administration is obsessed with secrecy and is evil!
June 30, 2008 at 3:30 pm
Robert Halford
Ooooh, that was some awesome typo-free writing up there. Sorry. You guys figure out what I’m trying to say!
June 30, 2008 at 3:40 pm
eric
The lesson you take away if you’re the government — come up with some semi-plausible story about why harm will befall the nation if the secret gets out before trying to prevent publication of purely retrospective material. Guess what — that’s pretty easy to do.
Except, as we’ve seen, quite often nobody bothers.
I disagree that today’s Court would have reached any different conclusion if the specific facts of the pentagon papers case was before it
Yeah, my thought about today is, politicians—not the Court—are only too willing to let themselves get rolled by vague generalities like those made in the Pentagon Papers injunctions. See, e.g., Steny Hoyer on the FISA bill and any Democrat who might agree with him.
June 30, 2008 at 3:40 pm
Robert Halford
Also, is it just me, or did Obama start to suck as soon as you guys started selling your bumper sticker? Thanks for killing hope.
June 30, 2008 at 3:55 pm
eric
I’m pretty sure the bumper sticker was a response to the objectionable behavior, and not its cause.
June 30, 2008 at 3:59 pm
urbino
On thinking it over a bit, my response is to wonder what difference it makes.
My original point, in the comment on your comment elsethread, was that I think I and many others disagree with our current leadership not only over the nature of the care with which they guard the country, but over the nature of the country they guard. That has many consequences, aside from just the fact that that’s a much more serious disagreement. For instance, under my view of the nature of the country, much of the kind of care being shown by our current leadership is inherently self-defeating; it burns the village in order to save it.
Does that help us improve matters now?
I think it does in at least a couple of ways. One, it clarifies what it is that’s being argued over. Second, if it is the case that this imperial notion of the presidency, say, is a recent innovation, it cuts the knees from under any originalist argument attempting to clothe that notion with a constitutional fig leaf. It saps the conservative argument of cultural legitimacy.
June 30, 2008 at 10:50 pm
Vance Maverick
Thanks, Urbino, I can work with that.
June 30, 2008 at 11:13 pm
urbino
I’m not sure what that means in this context, but okay. :)
June 30, 2008 at 11:14 pm
ari
You two make me like this blog. Seriously.
June 30, 2008 at 11:41 pm
urbino
Because I sound like an undergrad in one of your classes, thinking out loud?
June 30, 2008 at 11:51 pm
ari
No, because you’re disagreeing thoughtfully.
June 30, 2008 at 11:59 pm
urbino
No we aren’t.
July 1, 2008 at 12:01 am
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