The Secret Briefs and the Secret Evidence
White House Telephone Conversations
The oral argument before the Supreme Court is fascinating to hear. Alexander Bickel, the Times' lawyer, appears as something of a waffler, conceding ground to the government that the Post's attorney, William Glendon, hastens to recover. For example, Bickel makes much of the absence of a specific statute passed by Congress to allow prior restraint: "I have conceded, for the purposes of this argument, that some limitations, some impairment of the absoluteness of that prohibition [the First Amendment] is possible, and I argue that, whatever that may be, it is surely at its very least when the President acts without statutory authority…." (p. 49 of the transcript) One Justice comments, "That is a very strange argument for the Times to be making. The Congress can make all this illegal by passing laws." Justice Stewart (p. 45) asks what Glendon has called a "miserable, brilliant" hypothetical: What if the disclosure "would result in the sentencing to death of a hundred young men whose only offense had been that they were nineteen years old and had low draft numbers." Bickel fumbles: "I wish there were a statute that covered it." (p. 46) Glendon, in contrast, points out: "The government has not yet brought anything like that case to your Honors, nothing like that. What we have heard, your Honor, is much more in the nature of conjecture and surmise." (p. 54)
Interestingly, Solicitor General Erwin Griswold conceded a great deal when he highlighted the government's willingness to do an expedited declassification review of the Pentagon Papers, in "a minimum of 45 days." Griswold allowed as how "There is not the slightest doubt in my mind that there has been as long as I can remember, which is quite a while, massive over-classification of materials, and there has been much too slow review to provide declassification." (p. 22 of the transcript) But at the same time, Griswold endeavored to convince the Court that 11 specific items in the Pentagon Papers would cause "great and irreparable harm to the security of the United States" (p. 30) Griswold went on to say, "I haven't the slightest doubt myself that the material which has already been published and the publication of the other materials affects American lives and is a thoroughly serious matter. I think to say that it can only be enjoined if there will be a war tomorrow morning, when there is a war now going on, is much too narrow." (p. 31)
Some 28 years after these arguments, Griswold recanted his entire position in an op-ed published in the Washington Post ("Secrets Not Worth Keeping: The Courts and Classified Information," 15 February 1989, p. A25): "I have never seen any trace of a threat to the national security from the publication. Indeed, I have never seen it even suggested that there was such an actual threat…. It quickly becomes apparent to any person who has consideration experience with classified material that there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another. There may be some basis for short-term classification while plans are being made, or negotiations are going on, but apart from details of weapons systems, there is very rarely any real risk to current national security from the publication of facts relating to transactions in the past, even the fairly recent past. This is the lesson of the Pentagon Papers experience, and it may be relevant now."
The only mystery after the oral argument was how the Court's center would vote. Chief Justice Burger, along with Justices Harlan and Blackmun, supported the government's position. Justices Black, Douglas, Brennan and Marshall opposed the government's claim. In effect, then, the swing votes were Justices Stewart and White. Their two opinions – Stewart's with White, and White separately – are worth close attention, because both assumed that real damage would result from publication of the Pentagon Papers, yet they refused to countenance prior restraint on publication, given the First Amendment's protection of the press.
For example, Justice White wrote in his separate opinion: "I do not say that in no circumstances would the First Amendment permit an injunction against publishing information about government plans or operations. Nor, after examining the materials the Government characterizes as the most sensitive and destructive, can I deny that revelation of these documents will do substantial harm to public interests. Indeed, I am confident that their disclosure will have that result. But I nevertheless agree that the United States has not satisfied the very heavy burden that it must meet to warrant an injunction against publication in these cases…." White then went on in his opinion to explore, even encourage, the criminal prosecution of the Times and the Post on grounds of violating several sections of the Criminal Code. White specifically cited section 793(e) of 18 U.S.C., on unauthorized possession of a document relating to the national defense, as well as sections 797 (graphical representations of military installations) and 798 (code and cryptographic information), and wrote: "I would have no difficulty in sustaining convictions under these sections on facts that would not justify…the imposition of a prior restraint." This, of course, is exactly the route taken by the Department of Justice in prosecuting and convicting Navy analyst Samuel Morison in the early 1980s, for leaking a U.S. satellite photo of a Soviet aircraft carrier to a London publication. Morison was subsequently pardoned by President Clinton in January 2001.
Justice Stewart's opinion, joined by White, set the standard for what the Supreme Court would countenance for national security-based restrictions on press freedom – disclosure must "surely result in direct, immediate, and irreparable harm to our Nation, or its people." Stewart wrote: "We are asked, quite simply, to prevent the publication by two newspapers of material that the Executive Branch insists should not, in the national interest, be published. I am convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable harm to our Nation, or its people. That being so, there can under the First Amendment be but one judicial resolution of the issues before us."
Stewart's opinion offers profound insights even today, given Congress's approval last year (and President Clinton's veto) of a bill criminalizing leaks of any "properly classified" information – in effect, an official secrets act. Justice Stewart described Executive power over security classification, and the uneasy balance between the values of democratic governance and Executive claims of confidentiality in matters of diplomacy and defense. Stewart wrote: "In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry – in an informed and critical public opinion which alone can here protect the values of democratic government." Stewart described Executive power over internal security as "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."
NOTE: The audio clips are in MP3 format.
Audio Clips of Oral Arguments
Supreme Court Documents