 |
 |
 |
MR. JUSTICE BRENNAN, concurring.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK joins, concurring.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring.
MR. JUSTICE BLACKMUN, dissenting.
MR. JUSTICE HARLAN, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, dissenting.
MR. CHIEF JUSTICE BURGER, dissenting.
MR. JUSTICE MARSHALL, concurring.
MR. JUSTICE WHITE,
with whom MR. JUSTICE STEWART joins, concurring.
MR. JUSTICE STEWART, with whom MR. JUSTICE
WHITE joins, concurring.
In the governmental structure created by our
Constitution, the Executive is endowed with enormous power in
the two related areas of national defense and international relations.
This power, largely unchecked by the Legislative 1
and Judicial 2 branches, has
been pressed to the very hilt since the advent of the nuclear
missile age. For better or for worse, the simple fact is that
a President of the United States possesses vastly greater constitutional
independence in these two vital areas of power than does, say,
a prime minister of a country with a parliamentary form of government.
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. For
this reason, it is perhaps here that a press that is alert, aware,
and free most vitally serves the basic purpose of the First Amendment.
For without an informed and free press there cannot be an enlightened
people.
Yet it is elementary that the successful conduct
of international diplomacy and the maintenance of an effective
national defense require both confidentiality and secrecy. Other
nations can hardly deal with this Nation in an atmosphere of mutual
trust unless they can be assured that their confidences will be
kept. And within our own executive departments, the development
of considered and intelligent international policies would be
impossible if those charged with their formulation could not communicate
with each other freely, frankly, and in confidence. In the area
of basic national defense the frequent need for absolute secrecy
is, of course, self-evident.
I think there can be but one answer to this
dilemma, if dilemma it be. The responsibility must be where the
power is. 3 If the Constitution
gives the Executive a large degree of unshared power in the conduct
of foreign affairs and the maintenance of our national defense,
then under the Constitution the Executive must have the largely
unshared duty to determine and preserve the degree of internal
security necessary to exercise that power successfully. It is
an awesome responsibility, requiring judgment and wisdom of a
high order. I should suppose that moral, political, and practical
considerations would dictate that a very first principle of that
wisdom would be an insistence upon avoiding secrecy for its own
sake. For when everything is classified, then nothing is classified,
and the system becomes one to be disregarded by the cynical or
the careless, and to be manipulated by those intent on self-protection
or self-promotion. I should suppose, in short, that the hallmark
of a truly effective internal security system would be the maximum
possible disclosure, recognizing that secrecy can best be preserved
only when credibility is truly maintained. But be that as it may,
it is clear to me that it is the constitutional duty of the Executive
-- as a matter of sovereign prerogative and not as a matter of
law as the courts know law -- through the promulgation and enforcement
of executive regulations, to protect the confidentiality necessary
to carry out its responsibilities in the fields of international
relations and national defense.
This is not to say that Congress and the courts
have no role to play. Undoubtedly Congress has the power to enact
specific and appropriate criminal laws to protect government property
and preserve government secrets. Congress has passed such laws,
and several of them are of very colorable relevance to the apparent
circumstances of these cases. And if a criminal prosecution is
instituted, it will be the responsibility of the courts to decide
the applicability of the criminal law under which the charge is
brought. Moreover, if Congress should pass a specific law authorizing
civil proceedings in this field, the courts would likewise have
the duty to decide the constitutionality of such a law as well
as its applicability to the facts proved.
But in the cases before us we are asked neither
to construe specific regulations nor to apply specific laws. We
are asked, instead, to perform a function that the Constitution
gave to the Executive, not the Judiciary. We are asked, quite
simply, to prevent the publication by two newspapers of material
that the Executive Branch insists should not, in the national
interest, be published. I am convinced that the Executive is correct
with respect to some of the documents involved. But I cannot say
that disclosure of any of them will surely result in direct, immediate,
and irreparable damage to our Nation or its people. That being
so, there can under the First Amendment be but one judicial resolution
of the issues before us. I join the judgments of the Court.
---- Begin EndNotes ----
1 The President's power to make treaties and to appoint ambassadors is, of course, limited by the requirement of Art. II, § 2, of the Constitution that he obtain the advice and consent of the Senate. Article I, § 8, empowers Congress to "raise and support Armies," and "provide and maintain a Navy." And, of course, Congress alone can declare war. This power was last exercised almost 30 years ago at the inception of World War II. Since the end of that war in 1945, the Armed Forces of the United States have suffered approximately half a million casualties in various parts of the world.
2 See Chicago
& Southern Air Lines v. Waterman S. S. Corp., 333 U.S. 103;
Hirabayashi v. United States, 320 U.S. 81; United States v. Curtiss-Wright
Corp., 299 U.S. 304; cf. Mora v. McNamara, 128 U. S. App. D. C.
297, 387 F.2d 862, cert. denied, 389 U.S. 934.
3 n3 "It
is quite apparent that if, in the maintenance of our international
relations, embarrassment -- perhaps serious embarrassment -- is
to be avoided and success for our aims achieved, congressional
legislation which is to be made effective through negotiation
and inquiry within the international field must often accord to
the President a degree of discretion and freedom from statutory
restriction which would not be admissible were domestic affairs
alone involved. Moreover, he, not Congress, has the better opportunity
of knowing the conditions which prevail in foreign countries,
and especially is this true in time of war. He has his confidential
sources of information. He has his agents in the form of diplomatic,
consular and other officials. Secrecy in respect of information
gathered by them may be highly necessary, and the premature disclosure
of it productive of harmful results. Indeed, so clearly is this
true that the first President refused to accede to a request to
lay before the House of Representatives the instructions, correspondence
and documents relating to the negotiation of the Jay Treaty --
a refusal the wisdom of which was recognized by the House itself
and has never since been doubted. . . ." United States v.
Curtiss-Wright Corp., 299 U.S. 304, 320.
|
|
|
© 1995 - 2009, Touro Law Center