Pentagon Papers Revisited
NO ADMINISTRATION likes leaks. But not since the Nixon administration has the government so aggressively sought to crack down -- not just on leakers, but on reporters and others who obtain leaked material. In the latest manifestation of its disregard for First Amendment principles, the administration has used -- misused, to be more precise -- a grand jury subpoena to retrieve "any and all copies" of a document, marked "secret," obtained by the American Civil Liberties Union. The ACLU's request that a federal judge quash the subpoena should be granted.
The grand jury is an important tool for prosecutors to investigate wrongdoing -- not a vacuum cleaner for material the government wishes hadn't gotten out. The government is seeking to abuse the grand jury process to do an end run around the constitutional prohibition against prior restraint enshrined in the Pentagon Papers case. In that 1971 ruling, the government wanted to stop the New York Times and The Post from publishing classified documents about the Vietnam War; the Supreme Court said no. What if the government, instead of suing to block publication, had simply issued a grand jury subpoena demanding that the newspapers return the Pentagon Papers? If the ACLU, which advocates and litigates on issues of public policy, can be forced to comply with such a subpoena, news organizations would be similarly at risk.
Why would that be so terrible? Because even in a time of war -- in fact, especially in a time of war -- vigorous public debate about controversial policies is essential. An uninformed public can't conduct such a debate, whether the topic is the CIA's secret prisons or the warrantless surveillance of telephone calls. As Justice Potter Stewart wrote in concurring with the Pentagon Papers ruling, "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."
The government's aggressive -- the ACLU says unprecedented -- use of the subpoena power is especially disturbing because it appears so excessive under the circumstances. According to the ACLU, the 3 1/2 -page document, which came to it unsolicited, outlines "a set of general policy guidelines on a matter of longstanding concern to the ACLU." Its release "might perhaps be mildly embarrassing to the government but the document contains no information concerning matters such as troop movements, communications methods, intelligence sources or the like," the ACLU said. This does not appear to be a document so sensitive that its disclosure would inflict serious damage on national security. In addition, the government, to the extent that it has a legitimate interest in punishing leakers, apparently already knows who leaked it and to whom.
This subpoena, as the ACLU argues, has no "investigatory purpose" but only a "confiscatory, information-suppressive one." That might be in the Bush administration's interest. It's not in the public's.