Secret Evidence in the Age of National Security

AuthorAdam Liptak
Positionational Legal Correspondent for The New York Times.

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    Adam Liptak is the National Legal Correspondent for The New York Times. B.A. Yale University, 1984; J.D. Yale Law School, 1988.

Before I was a reporter, I spent 15 years working as a media lawyer. I spent a lot of time making access motions, asking that courtrooms be opened and documents be unsealed, and making Freedom of Information Act Requests for information from the government. I was an advocate, and I argued for the broadest conceivable access rights, which I said were rooted in the First Amendment and our nation's deepest principles.

I have, perhaps surprisingly, rethought my position a little since becoming a reporter. I still think that openness is almost always a wise policy; that the government's reflexive rationales for turning down requests for information from the press and public are rooted in power, politics, and fear, rather than the protection of legitimate secrets; and that privacy is often overvalued.

But I've hardly published anything, in four years as a reporter, that I obtained through legal argument. A vigorous press has always found ways to find things out, outside formal channels. So I want to pause for a moment before engaging some of what we heard during the excellent presentations today to step back and sketch out a sort of hierarchy of values under the First Amendment.

The highest, and by far the most important, is that the First Amendment is fundamentally about forbidding the government from censoring speech. In this area, whatever else our flaws, the United States continues to have the most robust commitment to free speech anywhere in the world. Some-among them, Andrew C. McCarthy-would argue that it is too absolutist. The Rwandan War Crimes Tribunal, in rejecting an argument based on American law that the Rwandan radio broadcasters, who helped direct genocide there, should not be liable for their speech, seemed to side with Mr. McCarthy.1

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But this American conception of free speech is now so deeply rooted that it is hard to imagine that it will be fundamentally disturbed. It is a conception based, perhaps oddly, on a metaphor-the metaphor that guides so much of American life: we trust in the marketplace. In the area of speech, we trust in the marketplace of ideas. The remedy for bad speech, we say, is more speech. People can be trusted to distinguish between good speech and bad.

As Justice Oliver Wendell Holmes Jr. put it: "the ultimate good desired is better reached by free trade in ideas-and the best test of truth is the power of the thought to get itself accepted in the competition of the marketplace."2

The entire enterprise is thus, on some levels, an exercise in moral relativism. As McCarthy wrote in the March issue of Commentary, "The result is a doctrinaire humility: we go forth assuming as an immutable truth that there are no immutable truths, and therefore that expression must be uninhibited."3 McCarthy then asked, "Must our historical deference to opinion, however noxious, defer as well to a call to arms against innocents, or a call to destroy a form of representative government that protects religious and political freedom?"4 Further- more, "some evils are so palpable [that] we need not further test them in the marketplace . . . . Do we really need additional ideological thrust-and-parry to know, for example, that the advocacy of genocide, or rape, or the indiscriminate mass slaughter of innocents is condemnable under any and all circumstances?"5

The short form of this argument is that the Constitution is not a suicide pact. My own view is that the alternative-letting the government decide what speech on matters of public concern is intolerable-is much worse. That is the message I took away from Dean Rudenstine's superb history of the Pentagon Papers case, The Day the Presses Stopped.6

That was in the days when The New York Times went on First Amendment crusades-and won. You will recall that in 1971, The Times started publishing the contents of a classified study of the Vietnam War, provided to it by a former government official who opposed Page 95 the war and had stolen a copy.7 The Nixon Administration went to court, claiming that continued publication would do harm to the nation's security in a time of war.8 It is hard to imagine a more compelling claim for government censorship. But our Supreme Court, in a 6- to-3 decision, said that the publication could continue,9 that the government had not proven the certainty of harm, and that the importance of an informed citizenry outweighed even a substantial risk of harm.

As it happened-and this is not unusual in the aftermath of moments of government hysteria-most historians agree that the nation's diplomatic and war efforts were no worse off after the publication. In- deed, incidentally, President Nixon's efforts to discover who leaked the Pentagon Papers led, almost inexorably, to the abuses of Watergate and to his resignation.

The case could have taken a very different turn early on, when the government sought a copy of the papers in The Times's possession. The Times refused, saying that doing so could disclose the identity of its source. A compromise was worked out by lawyers operating in good faith, with The Times instead providing a list of the documents it had acquired.

But for that compromise, the case might have proceeded in an entirely different posture. We might have gotten a different answer to the question of whether the First Amendment provides reporters with a privilege to protect their confidential sources, an answer different from the answer in the negative, provided by Branzburg v. Hayes,10 decided not long after the Pentagon Papers case. Or we might have learned a little earlier what Judith Miller learned again this year: that the Supreme Court does not read the First...

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