I argued therefore that “pornography is a red herring” and that in the absence of compelling evidence—of which there is none—that it causes actual harm beyond vicariously offending those who can choose not to see it, the government should get out of the business of censoring films and other media.54
Other types of speech pose far greater potential dangers. These communications include the divulgence of state secrets, the dissemination of classified information, and the publication of news stories that compromise the national interest and endanger citizens. The problem is that the censorship of such expression may also pose far greater risks to democracy and liberty than the censorship of obscenity. Put another way, democracy could survive the censorship of hard-core pornography, despite the “slippery slope” from porn to politics and art (or from Harry Reems to Helen Hayes). A society that banned pornography would, perhaps, be less vibrant, less tolerant, less pluralistic, less committed to choice, than one that did not. It might also be more subject to sliding down the slope toward other forms of artistic censorship at the margins. But so long as core political discourse remained free and open, democracy could survive. The same could not confidently be said about the widespread censorship of expression regarded by the government as state secrets, classified information, and “dangerous” news stories. These go to the very heart of our democratic system of checks and balances, in which the ultimate check is an informed public. As James Madison cautioned nearly two centuries ago: “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.”55
7
DISCLOSURE OF SECRETS
The Pentagon Papers and Julian Assange
The conflict between national security and free expression is real. It must be confronted and resolved by every society committed to civil liberties yet concerned for its safety. It is different from the alleged conflicts that motivate the censorship of obscene material, because there is ample room in a diverse society for accommodating the desires of those who get pleasure from porn and those who want to be protected from offensive material. The guiding principle that “your right to swing your fist ends at the tip of my nose”1 suggests a workable approach to the regulation of offensive material. But there is no simple rule for the accommodation of free expression and national security, where the expression may expose our security to real danger.
No reasonable person can dispute the reality that there are “necessary secrets,” like the names of spies, the movement of troops, the content of codes, the location of satellites, and the nature of secret weapons. Nor can any student of history doubt that there are unnecessary secrets, like old information that remains classified by bureaucratic inertia. There is also information kept secret under the pretext of national security but really in order to protect the reputation or electability of government officials. And then there is the most interesting category of secrets—those that are genuinely designed to protect national security in the short run, but whose disclosure may well serve the national interest in the long run. The most controversial genre are secrets the disclosure of which would, in the reasonable view of the government, endanger national security, but whose disclosure, in the equally reasonable view of the press, might ultimately serve the national interest.
The real issue is not whether such secrets should be published, since that question will often be a close one about which well-intentioned people will disagree. The real issue, as it often is in a democracy, is who should be entrusted to make this real-time decision.
The other difficult issue is not whether, but when to publish. In a democracy, there should be no permanent secrets, since history and accountability are paramount. The public must ultimately know everything its government has done in its name. But it is sometimes necessary to postpone publication until an immediate danger has passed, since in the modern world, there is no way of disclosing secrets to friends without also disclosing them to foes.
There is no “one size fits all” solution to this daunting conflict, but there are some useful guidelines in striking the proper balance. In the first place, the vast majority of claims that national security will be endangered by free expression are simply not true; most such claims are not even believed by the government officials who assert them. The talismanic phrase “national security” is invoked as a cover for convenience, for political advantage, and for protection from personal or political embarrassment. Every claim of “national security”—or “corporate security” or “university security” or the security of any institution—should be subject to rigorous challenge, in an effort to separate the contrived from the authentic. But this will not eliminate all disputes. There will be some cases of real and intractable conflict between security and freedom. Our Constitution purports to resolve doubts in favor of freedom, but there are cases where even that presumption will not resolve the problem: where the authentic claims of national security will seem to outweigh the powerful presumption in favor of free expression.
In those cases we need to develop mechanisms for resolving the dispute. Resolution cannot be left entirely in the hands of those responsible for security, such as the executive or the military. Our experience in delegating decision-making authority to these institutions in times of crisis is discouraging.
It has indeed been fortunate for the survival of our liberties that there have always been some Americans willing to challenge governmental high-handedness, even during periods of crisis.2 Under our constitutional system, it takes only a single person challenging the government to create a case or controversy suitable for judicial resolution.
This is not to suggest that justice should remain blind to the existence of a real emergency endangering the survival of the nation. As Justice Arthur Goldberg once wrote: “While the Constitution protects against the invasion of individual rights, it is not a suicide pact.”3 But it is precisely during times of crisis—when the balance between momentary expediency and enduring safeguards often goes askew—that courts can perform their most critical function: to preserve or restore a sense of perspective.
In the eternal struggle between liberty and security, we have come to expect the executive and legislative branches to champion the latter. The judiciary—with its lifetime tenure, its tradition of independence, and its unique stewardship over our rights—is the institution most able to resist the passing fears of a dangerous moment.
But liberty is not a commodity that can be obtained once and for all and then passively held on to. The battle for civil liberties, as Roger Baldwin, the late founder of the ACLU, liked to say, never “stays won.”4 (A variation on the biblical admonition that justice must be actively pursued, because it too never stays won.)5 The struggle must be endured by every new generation and in each new crisis. What Thomas Paine taught us on the eve of our own revolution remains true today: “Those who expect to reap the blessings of freedom must … undergo the fatigue of supporting it.”6
The stakes on both sides are much higher when the government seeks to censor dangerous “leaks” than when it seeks to censor merely offensive or disturbing speech. The danger of publication is greater and the danger of repression is also greater. There are serious risks in not censoring, and there are serious risks in censoring. Striking the proper constitutional balance is a daunting challenge. Unfortunately too few democracies—including our own—have confronted it wisely.7
I was asked to help confront this challenge early in my career in several important cases pitting national security against the First Amendment. These early cases grew out of our disastrous experience in Vietnam, and I observed at close range the ravages of war on our freedoms.
The first major Vietnam case was the conspiracy prosecution against Dr. Benjamin Spock, the Reverend William Sloane Coffin, and several other antiwar leaders. I played a consulting role in the defense of Dr. Spock and in the appeal of Reverend Coffin and eventually wrote an article for the New York Times about the case after
the convictions were reversed on appeal.8
The most publicized and notorious of the Vietnam protest cases was the conspiracy prosecution against the “Chicago Seven,” growing out of demonstrations during the 1968 Democratic National Convention. After the trial of that case, the lead defense lawyer—William Kunstler—was held in contempt of court and sentenced to four years’ imprisonment. I was part of the legal team assembled to prepare the appeal of that contempt order. We won.
Another major prosecution took place against the Berrigan brothers and other radical leaders of the draft resistance movement. I was asked to work on the defense of that case, but was “fired” by one of the more militant defendants when he learned that I was a Zionist.
The bitterness of the Vietnam War spread rapidly over college and university campuses. What began as peaceful teach-ins and protests soon turned into confrontations and violence. In 1969, there was an antiwar protest at Harvard that led to violence and several years of continuous turmoil on that venerable campus. These events led Harvard to attempt to dismiss numerous students. I represented several of them against the university. One was accused of “giving the finger” to a speaker. Another was accused of shouting “No silence in the face of death!” when a speaker requested a moment of silence for soldiers killed in combat. We won both cases.
As the war was winding down and the United States was deciding to withdraw from Vietnam, the CIA was given a major role in overseeing the American evacuation. One of the CIA agents in charge of the operation was Frank Snepp, who wrote an uncensored account of his experiences—taking care, however, not to disclose any classified material. He refused to submit his manuscript for prior “approval” by the CIA, as required in his employment contract. When his book, entitled Decent Interval,9 was published, the CIA sued him, and the case eventually was decided against him by the Supreme Court.10 I was one of his pro bono lawyers throughout the litigation.11
The release and publication of the Pentagon Papers in 1971 was perhaps the single most important event in turning American public opinion against the Vietnam War. While the New York Times and the Washington Post were fighting in court to continue publishing portions of the papers, Senator Mike Gravel of Alaska was taking more direct action: He convened an emergency nighttime meeting of his Subcommittee on Buildings and Grounds—hard to imagine a committee less relevant to the Pentagon Papers—and placed the papers in the public record. The “Gravel edition” of the Pentagon Papers was then published by Beacon Press of Boston.12 I represented Beacon Press and, subsequently, Senator Gravel in litigation that eventually went to the United States Supreme Court.13
I also conferred with my teacher and dear friend Alexander Bickel, who was lead counsel for the Times in the Pentagon Papers case.14 Since our cases shared a common constitutional approach, we exchanged ideas and drafts.
The difficulty of defending an absolutist view of the First Amendment was well illustrated by an exchange during the Supreme Court argument between Justice Potter Stewart and Professor Bickel. Stewart asked Bickel about “a hypothetical case”:
Let us assume that when the members of the Court go back and open up this sealed record we find something there that absolutely convinces us that its 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. What should we do?
Bickel fumbled: “I wish there were a statute that covered it.”
Justice Stewart persisted: “You would say the Constitution requires that it be published, and that these men die, is that it?”
Finally, Bickel answered his hypothetical directly: “No, I’m afraid that my inclinations to humanity overcome the somewhat more abstract devotion to the First Amendment in a case of that sort.”
The lawyer for the government, Solicitor General Erwin Griswold (former dean of Harvard Law School) did not regard Justice Stewart’s case as hypothetical.
“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.”15
The court ruled that the publication of the Pentagon Papers could not be stopped by the government.
Several years after the argument, Griswold expressed a rather different view:
I have never seen any trace of a threat to national security from the publication. Indeed, I have never seen it even suggested that there was such an actual threat. [He, of course, had suggested just that in his oral argument.] … It quickly becomes apparent to any person who has considerable 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.16
The First Amendment emerged victorious in the Pentagon Papers case, as it did in most of the antiwar cases of the 1970s. But this was before the age of the Internet, which changed the sounds and sights of expression—as well as raising the stakes involved in the debate by disseminating massive amounts of classified material throughout the world in the blink of an eye.
JULIAN ASSANGE AND WIKILEAKS
Important as it was as a First Amendment precedent, the Pentagon Papers case was First Amendment “child’s play” compared with the WikiLeaks case and other current threats to national security posed by modern computer technology. The Pentagon Papers, after all, were to be published by “mainstream,” “responsible,” and “patriotic” media,17 such as the New York Times, the Washington Post, and Beacon Press, which would be “sensible” in what they exposed to public view. They would never publish the names of spies, informers, or other people whose lives might be endangered by disclosure. (They don’t even publish the names of alleged rape victims, though in some cases there are good arguments for doing so.)18
These “established” media have permanent “addresses.” They can be found and held legally accountable if they violate the law, as the Supreme Court reminded them in the Pentagon Papers case. They are also “businesses” that need public support and are therefore unlikely to take actions that would alienate their paying readership, their advertisers, and their stockholders. These constraints provide some assurance that such established members of “the Fourth Estate” will not pose the worst kind of dangers to our national security, and they serve as an informal “check and balance” on the excesses of journalistic freedom.19
None of these assurances or checks are in place when it comes to the “hackers,” “cyber-thieves,” “anarchists,” and other “outsiders”—many of whom are “anonymous”—who currently threaten to expose our deepest, most dangerous, and most valuable “secrets.”
There are, of course, some historical low-tech antecedents to the current high-tech dangers. During our prerevolutionary, revolutionary, and immediate postrevolutionary eras, there were many “radical,” “irresponsible,” “anarchistic,” and “anonymous” “rabble-rousers” and even “whistle-blowers,” “eavesdroppers,” and “leakers” who were believed to be endangering the “security” of the government. “Secret presses” published “anonymous” or pseudonymous screeds, some of which disclosed “secrets” or other “dangerous” information.
The language of the First Amendment would seem to protect these dissidents against abridgement of their freedom of expression—at least from the United States government. But our history in this regard has been checkered at best, especially in the context of fear of war.
Less than a decade after the ratification of the First Amendment, Congress (the very Congress that was directed to “make no law” abridging t
he freedom of speech) enacted the Alien and Sedition Laws, which abridged the freedom of speech of critics of the Adams administration. The justification for this legislation was the fear of war with France.20 During every war or threatened war since, there have been efforts to abridge the speech of “disloyal,” “unpatriotic,” and “irresponsible” dissenters,21 such as those who, in Justice Holmes’s benighted view, “shouted fire” by protesting World War I.
These “retail” dangers posed by individual troublemakers (or even by groups) were, of course, rather meager compared to the “wholesale” dangers currently posed by “cyber-troublemakers,” such as Julian Assange and WikiLeaks. Indeed, even Assange and WikiLeaks are somewhat closer to established media than are others whom we know little about. After all, WikiLeaks worked closely with the New York Times and other mainstream media. There are generally several levels of vetting before anything is published. It can be argued that WikiLeaks has served as a “filter” for material that might otherwise have been published directly on the Internet, without names or other such material having been removed.
There are hackers out there who regard Assange as a “sellout” for “tampering with the truth” by excising anything. They would—and do if they can—publish everything they manage to hack. That is why the first line of defense against the disclosure of secrets is to protect the most important secrets from hacking or other means of accessing them by preventive steps. As Assange once told me, “The best way to keep a secret is not to know it.” The United States does a terrible job of protecting its secrets, often giving access to some of the most unstable, irresponsible, or risky individuals (such as Bradley Manning and Edward Snowden), while denying security clearance to loyal and cautious people. Inevitably some secrets will become known to those who have no stake in keeping them secret and a stake in making them public. That’s why the rule of law, rather than the whim of government officials, is needed to strike the appropriate balance.
Taking the Stand Page 19
