Wikileaks and the Pentagon Papers

by Roger Alford

“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.

http://opiniojuris.org/2010/12/14/wikileaks-and-the-pentagon-papers/

4 Responses

  1. Response…

    I think it’s a bit dissimulative to hold that the “majority” in NYT v. US had no problem with criminal prosecutions for the publication of the PPs. While that might be technically correct in terms of the raw 5/4 numbers you cite, and select quotes thereof, it’s far removed from the spirit of the decision.

    A more careful reading of the opinions, especially those in the 6-3 majority, makes it eminently clear that any effort to abrogate the 1A free press (publication) right is nearly impossible; indeed, only the release of battlefield ops and detail in an active war zone would serve to inhibit the muscle and bulwark that is the 1A.

    Of course, nothing in WikIleaks comes close to approaching that sphere of disclosure, nor did the PPs for that matter.  More on point,  1) not even was injunctive relief granted; 2) words of criminal prosecution being successful were offered conditionally, when they were offered, except by White; 3) two justices emphasize the point that the statutory history of the Espionage Act makes clear that congress expressly eschewed the idea of granting added power to the act (i.e., to the executive) insofar as retarding a free press, despite national security screams.

    Thus, while a theoretical prosecution wasn’t dismissed by the decision as being unconstitutional, it was so heavily outweighed by the 1A genuflection as to make the entire notion of a latent criminal proceeding, hollow.

  2. Of related interest, here is the audio from an interview of Daniel Ellsberg from a few days ago. He was on the Brian Lehrer Show on WNYC (New York public radio) talking about the comparisons of Wikileaks to the Pentagon papers. In short: Ellsberg says it is incorrect to compare Assange to him because Assange is more like in the position of the NY Times.  Whoever actually leaked the cables, be it the soldier who has been under investigation or someone else, is situated as Ellsberg was. Going from there, there is alot of discussion of comparative ethics of publishing the Pentagon Papers versus the mass of cables.

    Interesting to get Ellberg’s view, although it is not about the law, really, but about the ethics of leaking. 

    Chris

  3. Roger,

    Your interesting post raises two questions.  First, none of the quotes you reference require an intent to harm the United States; does that mean you think such an intent should not be required to prosecute an organization that publishes leaked documents?  Second, the quotes address the potential prosecution of the New York Times; does that mean that you now believe the newspaper should be prosecuted as well as WikiLeaks?

  4. Great questions.  I was curious about that first point as well.  Justice White’s concurrence states in footnote 9 the following:

    “It seems clear from the foregoing, contrary to the intimations of the District Court for the Southern District of New York in this case, that in prosecuting for communicating or withholding a “document” as contrasted with similar action with respect to “information” the Government need not prove an intent to injure the United States or to benefit a foreign nation but only willful and knowing conduct.”

    I am not clear whether that is the current standard or not, perhaps others can advise. 

    As for the second question, I would again agree with Mukasey.  He states that, “The distinction I’m drawing is that it is easier, from a policy standpoint, to prosecute Assange. There’s a clearer case with respect to Assange. With regard to the Times, I think, just as a matter of discretion, I would hold back.”

    If there there is an intent requirement, I think a case against the New York Times would be much, much harder.  If it is just a knowledge requirement, then the New York Times may be guilty, but prosecutorial discretion would suggest a distinction between Assange and the New York Times for the reasons we have discussed before.

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