Clarification

In my recent series of posts on the whole Wikileaks mess, several people have brought up the issue of the Pentagon Papers. In order to make sure that the historical analogy is apt, I am currently reading the Supreme Court decision regarding the Pentagon Papers, have some of the actual documents in a separate tab, have my copy of Hannah Arendt's "Lying In Politics" around here somewhere, and am listening to Dave Brubeck live at Carnegie Hall, recorded in 1963. I plan, or hope anyway, to do this reading and produce something of interest to someone (perhaps even me!) at some point, but for now, I thought quoting from Justice Black's written decision in the case is important. I do not think the publication of the Wikileaks documents is or was or should be illegal. Whether or not the person or persons responsible for giving those documents to Wikileaks committed a crime is up to a court martial before a jury of peers. My argument is quite different. I do not think the public has gained any clarity or insight in to the events of the Iraq War and occupation through the publication of these classified documents. Rather, by creating the illusion of knowledge and understanding in the absence of any real ability to understand the whole context of the various circumstances in question (not the least of which may be, which documents were not released that may have painted a completely different picture of the events in question?), they may make fools of many who rush to judgment on incomplete, even erroneous data.

Having said that, I quote now from the late Justice Hugo Black, writing in New York Times v US (.pdf):

The Bill of Rights changed the original constitution into a new chrater under which no branch could abridge the people's freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original constitution should be interpreted to limit or restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of history. Madison and the other framers of the First Amendment, able men that they were, wrote in language they earnestly believed could never be misunderstood "Congress shall make no law . . . abridging the freedom . . . of the press." Both the history and the language of the First Amendment support the view that the press must be left free to publish news whatever the source, without censorship, injunctions, or prior restraints.

--snip--

[T]he government argues in its brief that in spite of the First Amendment, "[t]he authority of the Executive Department to protect the nation against publication of information whose disclosure would endanger the national security stems from two interrelated sources: the constitutional power of the President over the conduct of foreign affairs, and his authority as Commander-in-Chief."

. . . To find that the President has "inherent power" to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make "secure".

If you notice, the reasoning Black pretty much calls BS, as presented by the Solicitor General, is also the reasoning John Yoo, as chief of the office of legal counsel in the Bush White House, offered as granting to President Bush (or any President, really) to act pretty much any way he or she wanted. Black called it out as nonsense in 1971, and I see no reason why it shouldn't be considered nonsense still.

In any event, I stand with Hugo Black here. Would that we had Supreme Court Justices like that now . . .