By ADAM LIPTAK
Published: May 16, 2009
WASHINGTON It was a hypothetical question in a Supreme Court
argument, and it was posed almost 40 years ago. But it managed to
anticipate and in some ways to answer President Obama's argument for
withholding photographs showing the abuse of prisoners in Iraq and Afghanistan.
What if, Justice Potter Stewart asked a lawyer for The New York Times
in the Pentagon Papers case in 1971, a disclosure of sensitive
information in wartime "would result in the sentencing to death of
100 young men whose only offense had been that they were 19 years old
and had low draft numbers?" The Times's lawyer, Alexander M. Bickel,
tried to duck the question, but the justice pressed him:
"You would say that the Constitution requires that it be published
and that these men die?"
Mr. Bickel yielded, to the consternation of allies in the case. "I'm
afraid," he said, "that my inclinations of humanity overcome the
somewhat more abstract devotion to the First Amendment."
And there it was: an issue as old as democracy in wartime, and as
fresh as the latest dispute over pictures showing abuse of prisoners
in the 21st century. How much potential harm justifies suppressing
facts, whether from My Lai or Iraq, that might help the public judge
the way a war is waged in its name?
The exchange also contained more than a hint of the court's eventual
calculus: The asserted harm can't be vague or speculative; it must be
immediate and concrete. It must be the sort of cost that gives a
First Amendment lawyer pause.
As it happened, Mr. Bickel's response outraged the American Civil
Liberties Union and other allies of the newspaper in the Pentagon
Papers case, which concerned the Nixon administration's attempt to
prevent publication of a secret history of the Vietnam War. They
disavowed Mr. Bickel's answer and said the correct response was,
"painfully but simply," that free people are entitled to evaluate
evidence concerning the government's conduct for themselves.
Which is a good summary of the interest on the other side: Scrutiny
of abuses by the government enhances democracy because it promotes
accountability and prompts reform.
Justice William O. Douglas, in a 1972 dissent in a case about
Congressional immunity, described his view of the basic dynamic. "As
has been revealed by such exposés as the Pentagon Papers, the My Lai
massacres, the Gulf of Tonkin 'incident,' and the Bay of Pigs
invasion," he wrote, "the government usually suppresses damaging news
but highlights favorable news."
Indeed, the Nixon administration successfully opposed the use of the
Freedom of Information Act to obtain the release of documents and
photographs concerning the killings of hundreds of South Vietnamese
civilians in 1968 at My Lai. (The decision led Congress to broaden that law.)
Disclosure of abuses can also provoke a backlash. The indelible
images that emerged from the Vietnam War helped turn the nation
against the war, and may have steeled America's enemies. And earlier
photographs of abuse at the Abu Ghraib prison in Iraq were used for
propaganda and recruitment by insurgents there.
How, then, to apply the lessons of history and law to the possible
disclosure of additional images of prisoner mistreatment by Americans
in the current wars?
On Wednesday, when Mr. Obama announced that the government was
withdrawing from an agreement to comply with court orders requiring
release of the images, he said there was little to learn from them
and much to fear. But he offered speculation on both sides of the balance.
"The publication of these photos would not add any additional benefit
to our understanding of what was carried out in the past by a small
number of individuals," he said. "In fact, the most direct
consequence of releasing them, I believe, would be to further inflame
anti-American opinion and to put our troops in greater danger."
The first assertion, which the Bush administration also made, is not
universally accepted. In a 2005 decision ordering the release of the
images, Judge Alvin K. Hellerstein of the Federal District Court in
Manhattan said they may provide insights into whether the abuses
shown were indeed isolated and unauthorized.
And the claim that harm would follow disclosure that terrorists,
for example, would exact revenge is hard to measure or prove. "The
terrorists in Iraq and Afghanistan do not need pretexts for their
barbarism," Judge Hellerstein wrote. In the Pentagon Papers case,
too, the Supreme Court ruled in favor of publication, saying, in
essence, that speculation about potential harm was not sufficient.
There are, of course, profound differences between the two cases. One
concerned the constitutionality of a prior restraint against
publishing information already in the hands of the press; the other
is about whether civil rights groups are entitled to obtain materials
under the Freedom of Information Act. But both involve contentions
that serious harm would follow from publication.
Justice Stewart's answer, in his concurrence in the 6-to-3 decision,
was that assertions are not enough. "I cannot say," he wrote, that
disclosure "will surely result in direct, immediate and irreparable
damage to our nation or its people." In other contexts, too, the
Supreme Court has endorsed limits on speech only when it would cause
immediate and almost certain harm to identifiable people. More
general and diffuse consequences have not done the trick.
In 1949, for instance, the court overturned the disorderly conduct
conviction of a Chicago priest whose anti-Semitic speech at a rally
had provoked a hostile crowd to riot. Free speech, Justice Douglas
wrote, "may indeed best serve its high purpose when it induces a
condition of unrest, creates dissatisfaction with conditions as they
are or even stirs people to anger."
Fear of violence, however, was enough to persuade many people that
publication of cartoons depicting the Prophet Muhammad should be
discouraged or forbidden.
Andrew C. McCarthy, a former federal prosecutor who has handled
terrorism cases, said the only prudent course in the current case is
to withhold the images. "If you're in a war that's been authorized by
Congress, it should be an imperative to win the war," he said. "If
you have photos that could harm the war effort, you should delay
release of the photos."
But Jameel Jaffer, a lawyer with the civil liberties union, said
history favored disclosure, citing the 2004 photographs from Abu
Ghraib and the 1991 video of police beating Rodney King in Los Angeles.
But the touchstone remains the Pentagon papers case. It not only
framed the issues, but also created a real-world experiment in consequences.
The government had argued, in general terms, that publication of the
papers would cost American soldiers their lives. The papers were
published. What happened?
David Rudenstine, the dean of the Cardozo Law School and author of
"The Day the Presses Stopped," a history of the case, said he
investigated the aftermath with an open mind.
"I couldn't find any evidence whatsoever from any responsible
government official," he said, "that there was any harm."