Daniel Ellsberg and Hugo Black

 The death of Daniel Ellsberg saddened me, because I had several long phone conversations with him about five years ago, after contacting him about his last book, The Doomsday Machine--a history of his involvement with nuclear planning in the 1950s and 1960s.  I can't remember exactly how I managed to send him an email, but he called me out of the blue and it took me about a minute to realize whom I was talking to.  He identified himself as an admirer of my book, American Tragedy, and we exchanged a lot of thoughts about Vietnam and nuclear planning.  He had discovered while working for the federal government in the late 1950s that the American military expected any new military conflict with Communist China--over Taiwan, Vietnam or Laos, or South Korea--to lead to an all-out US nuclear attack on China.  I had discovered the same thing researching that book.

Ellsberg is best known, of course, for copying and releasing to the press the big study of the origins of the Vietnam War that Robert McNamara had commissioned in 1968.  The actual historical significance of the Pentagon Papers, as they were immediately called, was I think exaggerated at the time, and the passage from them that drew perhaps the most attention--a breakdown by Assistant Secretary of Defense John McNaughton of the reasons we were fighting in South Vietnam--was, I later concluded, completely misinterpreted by most observers at the time.  Yet the repercussions of what Ellsberg did were astonishing. Richard Nixon and Henry Kissinger formed the Plumbers Unit inside the White House to investigate this and other leaks of classified information in the summer of 1971.  The Plumbers broke into the offices of Ellsberg's psychiatrist in California in search of evidence against him, and then provided the key personnel for the Watergate break-in in spring of 1972.  Partly for that reason, the espionage case against Ellsberg was dismissed the next spring when these actions became known.  What stays with me most about the Pentagon Papers affair, however, was the Supreme Court concurring opinion written by one of my favorite justices, Hugo Black.

Black in 1971 had been the Court for 34 tumultuous years.  A prominent Alabama liberal--a now extinct species--he had participated in all the Warren Court's great decisions on civil rights and the rights of defendants, and he had emerged early on as one of the foremost defenders of civil liberties ever to sit on our highest court.  In the early 1950s he had even voted to invalidate the conviction of American Communist leaders under the Smith Act, on the grounds that the act criminalized beliefs, not actions.  He did not write the majority opinion, but he used his concurring opinion to state perhaps more clearly than he ever had--as we shall see in a moment--his view of the critical role of the free press in American democracy.  It turned out to be his last opinion, and he fell ill and then died within just a few weeks of writing it.

More than ten years later, in Pittsburgh, my friend Tom Kerr, the head of the Pittsburgh chapter of the American Civil Liberties Union, told me another story about the opinion.  When he fell ill, Black had written out careful instructions for his memorial service--which the leading members of the Nixon Administration, including Attorney General John Mitchell and Nixon himself, would have to attend.  And to conclude the memorial--which Kerr attended--Black designated someone to read his Pentagon Papers opinion in full.  This is what the assembled company heard.

"I adhere to the view that the Government's case against the Washington Post should have been dismissed and that the injunction against the New York Times should have been vacated without oral argument when the cases were first presented to this Court. I believe [403 U.S. 713, 715]   that every moment's continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment. Furthermore, after oral argument, I agree completely that we must affirm the judgment of the Court of Appeals for the District of Columbia Circuit and reverse the judgment of the Court of Appeals for the Second Circuit for the reasons stated by my Brothers DOUGLAS and BRENNAN. In my view it is unfortunate that some of my Brethren are apparently willing to hold that the publication of news may sometimes be enjoined. Such a holding would make a shambles of the First Amendment.

"Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country.

"In seeking injunctions against these newspapers and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment. When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms. 1 They especially feared that the [403 U.S. 713, 716]   new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. Madison proposed what later became the First Amendment in three parts, two of which are set out below, and one of which proclaimed: "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable." 2 (Emphasis added.) The amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative, and Judicial Branches two years before in the original Constitution. The Bill of Rights changed the original Constitution into a new charter under which no branch of government 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 and 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 [403 U.S. 713, 717]   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 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.

"In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do. [emphasis added].

"The Government's case here is based on premises entirely different from those that guided the Framers of the First Amendment. The Solicitor General has carefully and emphatically stated:

"Now, Mr. Justice [BLACK], your construction of . . . [the First Amendment] is well known, and I certainly respect it. You say that no law means no law, and that should be obvious. I can only [403 U.S. 713, 718]   say, Mr. Justice, that to me it is equally obvious that `no law' does not mean `no law', and I would seek to persuade the Court that is true. . . . [T]here are other parts of the Constitution that grant powers and responsibilities to the Executive, and . . . the First Amendment was not intended to make it impossible for the Executive to function or to protect the security of the United States." 3  

"And the 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." 4  

"In other words, we are asked to hold that despite the First Amendment's emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of "national security." The Government does not even attempt to rely on any act of Congress. Instead it makes the bold and dangerously far-reaching contention that the courts should take it upon themselves to "make" a law abridging freedom of the press in the name of equity, presidential power and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law. 5 See concurring opinion of MR. JUSTICE DOUGLAS, [403 U.S. 713, 719]   post, at 721-722. 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." No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time.

"The word "security" is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged. This thought was eloquently expressed in 1937 by Mr. Chief Justice Hughes - great man and great Chief Justice that he was - when the Court held a man could not be punished for attending a meeting run by Communists.

"'The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free [403 U.S. 713, 720]   assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.'" 

Nixon, Mitchell and the other administration officials, Kerr remembered, walked out of the memorial with their faces twisted with fury.