When Edward Snowden leaked thousands of classified documents over a year ago, his disclosure of the National Security Agency’s massive surveillance program forced Americans to confront a dilemma. How should we weigh the need to maintain secrets, without which some agencies of government cannot function, against our right to know what is being done in our name? How should a democracy reconcile the essential work of intelligence, diplomacy and the military with an independent and energetic press?
The value of confidentiality in delicate diplomatic missions and secrecy in military operations is obvious. But so far, no evidence has been produced that national security has been notably compromised by the Snowden revelations. The leaks have certainly undermined official assurances that citizens’ privacy has been protected and that the NSA has faithfully obeyed the law.
The consequence? Public cynicism. The country has been down this road before. A brief history of the Pentagon Papers may offer a clue that the fears stemming from the Snowden disclosures are overstated.
The Pentagon Papers case brought us the most important constitutional decision ever, trying to balance claims of governmental secrecy against the First Amendment ideal of journalistic freedom, including the freedom to dissent.
The predecessor to Edward Snowden was Daniel Ellsberg, who served during the Vietnam War in the Departments of State and Defense. But the high moral cost of the war transformed him from a hawk to a dove. While working as a defense analyst for the Rand Corp. in 1969, Ellsberg managed to read all 47 volumes of a top-secret Department of Defense evaluation of how the United States, from 1945 until 1968, had gotten into the quagmire of Indochina.
Ellsberg, who had himself contributed to one of the volumes, was shocked to discover the chasm between official rationales and cynical estimates, between the optimistic predictions and the yearning to kick the can down the road for a future president to resolve. With Rand colleague Anthony Russo, Ellsberg was inspired to photocopy the Pentagon Papers.
The pair violated contractual obligations (as, we can presume, Snowden did). But the United States, unlike other democracies such as Great Britain and Canada, lacks an Official Secrets Act under which they could be charged; nor did the legislators who drafted the Espionage and the Sedition Acts of nearly a century ago foresee the invention of Xerox machines.
However, the First Amendment did establish, at least implicitly, a vital link between popular sovereignty and an informed public, between a healthy democracy and conscientious journalism. By the spring of 1971, Ellsberg had finally found a newspaper — The New York Times — willing to publish the troublesome news the Pentagon Papers conveyed. The Times was soon joined by almost two dozen other dailies. These newspapers dared to expose the genesis of a war still being waged in Vietnam, a war that was proving to be more divisive at home than any conflict since the Civil War itself. The Nixon administration asserted that the published excerpts endangered national security. Nixon elected to prosecute The Times and three other publications.
Such a stab at censorship made little sense. The Pentagon Papers disclosed nothing beyond Lyndon B. Johnson’s administration; therefore no active information that might interest an adversary was revealed. All operational codes that might show how intelligence was gathered had long been changed, many times over. Nor did Ellsberg give the newspapers any pages from the four volumes of the Pentagon Papers that dealt with efforts to release prisoners of war or to find a diplomatic exit from the war.
Because Nixon overreached, the scope of the First Amendment grew explicitly. On June 30, 1971, the strikingly named New York Times Co. vs. United States produced a 6-3 verdict: The Supreme Court upheld the right to publish excerpts from a highly classified examination of the basis of a war that was still ripping apart the nation. Interestingly enough, neither the attorneys for the newspapers nor Solicitor General Erwin Griswold enjoyed the security clearance that would have permitted them to read the full contents of the Pentagon Papers. Nor were the nine justices entitled to. But the court did not share Griswold’s fear that lives might be lost, and national security significantly damaged, unless the Pentagon Papers were suppressed.
The case was rightly decided, as Griswold himself gallantly conceded two decades later, in an op-ed piece in The Washington Post.
History rarely offers perfect antecedents. But the Pentagon Papers imbroglio suggests that current warnings about the terrible consequences of the NSA leaks should be taken with a pillar of salt.
Stephen Whitfield is the Max Richter professor of American civilization at Brandeis University. His email address is swhitfie@brandeis.edu.