Wikileaks and the Pentagon Papers

“The majority of the Supreme Court said that although they would not stop publication in advance, the question of whether there could be prosecution afterwards was a completely different thing.”

–former Attorney General Michael Mukasey on the Pentagon Papers

Mukasey is right. It seems that in the attempts to compare this case to the Pentagon Papers, the essential distinction between the two cases has been lost. Pentagon Papers was a case about prior restraint. This case is about prosecution following publication. In the Pentagon Papers case, a majority of the Supreme Court left no doubt about the authority of the U.S. government to prosecute following publication.

Here are a few choice excerpts from the various concurring and dissenting opinions:

Justice White, with Justice Stewart concurring:

I concur in today’s judgments, but only because of the concededly extraordinary protection against prior restraints enjoyed by the press…. [18 U.S.C. 798] … proscribes knowing and willful publication of … communication intelligence activities of the United States as well as any information obtained from communication intelligence operations. If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.

Justice Stewart, with Justice White concurring:

It is elementary that the successful conduct of international diplomacy and the maintenance of an effective national defense require both confidentiality and secrecy. Other nations can hardly deal with this Nation in an atmosphere of mutual trust unless they can be assured that their confidences will be kept. And within our own executive departments, the development of considered and intelligent international policies would be impossible if those charged with their formulation could not communicate with each other freely, frankly, and in confidence. In the area of basic national defense the frequent need for absolute secrecy is, of course, self-evident.

Justice Harlan, with Chief Justice Burger and Justice Blackman, dissenting:

Forced as I am to reach the merits of these cases, I dissent from the opinion and judgments of the Court…. [T]he judiciary must review the initial Executive determination to the point of satisfying itself that the subject matter of the dispute does lie within the proper compass of the President’s foreign relations power…. Moreover, the judiciary may properly insist that the determination that disclosure of the subject matter would irreparably impair the national security be made by the head of the Executive Department … after actual personal consideration by that officer…. [T]he judiciary may not properly go beyond these two inquiries.

Chief Justice Burger, dissenting:

I agree generally with Mr. Justice Harlan … but I am not prepared to reach the merits. I should add that I am in general agreement with much of what Mr. Justice White has expressed with respect to penal sanctions concerning communications or retention of document or information relating to the national defense.

Justice Blackmun, dissenting:

I join Mr. Harlan in his dissent. I also am in substantial accord with much that Mr. Justice White says, by way of admonition, in the latter part of his opinion [addressing penal sanctions]…. [I]f … these newspapers proceed to publish the critical documents and there results therefrom the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiations with our enemies, the inability of our diplomats to negotiate, … the prolongation of the war and of further delay in the freeing of United States prisoners, then the Nation’s people will know where the responsibility for these sad consequences rests.