# Gravel v. United States/Dissent Douglas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Stewart Douglas Brennan
[p633] MR. JUSTICE DOUGLAS, dissenting.
I would construe the Speech or Debate Clause to insulate Senator Gravel and his aides from inquiry concerning the Pentagon Papers, and Beacon Press from inquiry concerning publication of them, for that publication was but another way of informing the public as to what had done on in the privacy of the Executive Branch concerning the conception and pursuit of the so-called "war" in Vietnam. Alternately, I would hold that Beacon Press is protected by the First Amendment from prosecution or investigations for publishing or undertaking to publish the Pentagon Papers.
Gravel, Senator from Alaska, was Chairman of the Senate Subcommittee on Public Buildings and Grounds. He convened a meeting of the Subcommittee and read to it a summary of the so-called Pentagon Papers. He then introduced "the entire Papers, allegedly some 47 volumes and said to contain seven million words, as an [p634] exhibit." 455 F. 2d 753, 756. Thereafter, he supplied a copy of the papers to the Beacon Press, a Boston publishing house, on the understanding that it would publish the papers without profit to the Senator. A grand jury was investigating the release of the Pentagon Papers and subpoenaed one Rodberg, an aide to Senator Gravel, to testify. Rodberg moved to quash the subpoena; and on the same day the Senator moved to intervene. Intervention was granted and in due course the Court of Appeals entered the following order which is now before us for review:
   "(1) No witness before the grand jury currently investigating the release of the Pentagon Papers may be questioned about Senator Mike Gravel's conduct at a meeting of the Subcommittee on Public Buildings and Grounds on June 29, 1971, nor, if the questions are directed to the motives or purposes behind the Senator's conduct at that meeting, about any communications with him or with his aides regarding the activities of the Senator or his aides during the period of their employment, in preparation for and related to said meeting.
   "(2) Dr. Leonard S. Rodberg may not be questioned about his own actions in the broadest sense, including observations and communications, oral or written, by or to him or coming to his attention while being interviewed for, or after having been engaged as a member of Senator Gravel's personal staff to the extent that they were in the course of his employment."

## I

Both the introduction of the Pentagon Papers by Senator Gravel into the record before his Subcommittee and his efforts to publish them were clearly covered by [p635] the Speech or Debate Clause, as construed in Kilbourn v. Thompson, 103 U.S. 168, 204:
   "It would be a narrow view of the constitutional provision to limit it to words spoken in debate. The reason of the rule is as forcible in its application to written reports presented in that body by its committees, to resolutions offered, which, though in writing, must be reproduced in speech, and to the act of voting, whether it done vocally or by passing between the tellers. In short, to things generally done in a session of the House by one of its members in relation to the business before it."
One of the things normally done by a Member "in relation to the business before it" is the introduction of documents or other exhibits in the record the committee or subcommittee is making. The introduction of a document into a record of the Committee or subcommittee by its Chairman certainly puts it in the public domain. Whether a particular document is relevant to the inquiry of the committee may be questioned by the Senate in the exercise of its power to prescribe rules for the governance and discipline of wayward members. But there is only one instance, as I see it, where supervisory power over that issue is vested in the courts, and that is where a witness before a committee is prosecuted for contempt and he makes the defense that the question he refused to answer was not germane to the legislative inquiry or within its permissible range. See Uphaus v. Wyman, 360 U.S. 72; Kilbourn v. Thompson, supra, at 190.
In all other situations, however, the judiciary's view of the motives or germaneness of a Senator's conduct [p636] before a committee is irrelevant. For, "[t]he claim of an unworthy purpose does not destroy the privilege." Tenney v. Brandhove, 341 U.S. 367, 377. If there is an abuse, there is a remedy; but it is legislative, not judicial.
As to Senator Gravel's efforts to punish the Subcommittee record's contents, wide dissemination of this material as an educational service is as much a part of the Speech or Debate Clause philosophy as mailing under a frank a Senator's or a Congressman's speech across the Nation. As mentioned earlier, "[i]t is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees.... The informing function of Congress should be preferred even to its legislative function." W. Wilson, Congressional Government 303 (1885), quoted with approval in Tenney v. Brandhove, supra, at 377 n. 6. "From the earliest times in its history, the Congress has assiduously performed an 'informing function,'" Watkins v. United States, 354 U.S. 178, 200 n. 33. "Legislators have an obligation to take positions on controversial political questions so that their constituents can be fully informed by them. Bond v. Floyd, 385 U.S. 116, 136.
We said in United States v. Johnson, 383 U.S. 169, 179, that the Speech or Debate Clause established a "legislative privilege" that protected a member of Congress against prosecution "by an unfriendly executive and conviction by a hostile judiciary" in order, as Mr. Justice Harlan put it, to ensure "the independence of the legislature." That hostility emanates from every stage of the present proceedings. It emphasizes the need to construe the Speech or Debate Clause generously, not niggardly. If republication of a Senator's speech in a newspaper carries the privilege, as it doubtless does, then republication of the exhibits introduced [p637] at a hearing before Congress must also do so. That means that republication by Beacon Press is within the ambit of the Speech or Debate Clause and that the confidences of the Senator in arranging it are not subject to inquiry "in any other Place" than the Congress.
It is said that though the Senator is immune from questioning as to what he said and did in preparation for the committee hearing and in conducting it, his aides may be questioned in his stead. Such easy circumvention of the Speech or Debate Clause would indeed make it a mockery. The aides and agents such as Beacon Press must be taken as surrogates for the Senator and the confidences of the job that they enjoy are his confidences that the Speech or Debate Clause embraces.

## II

The secrecy of documents in the Executive Department has been a bone of contention between it and Congress from the beginning. Most discussions have [p638] centered on the scope of the executive privilege in stamping documents as "secret," "top secret," "confidential," and so on, thus withholding them from the eyes of Congress and the press. The practice has reached large proportions, it being estimated that
    (1) Over 30,000 people in the Executive Branch have the power to wield the classification stamp.
    (2) The Department of State, the Department of Defense, and the Atomic Energy Commission have over 20 million classified documents in this files.
    (3) Congress appropriates approximately $15 billion annually without most of its members or the public or the press knowing for what purposes the money is to be used.
The problem looms large as one of separation of [p639] powers. Woodrow Wilson wrote about it in terms of the "informing function" of Congress:
   "It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function. The argument is not only that discussed and interrogated administration is the only pure and efficient administration, but, more than that, that the only really self-governing people is that people which discusses and interrogates its administration. The talk on the part of Congress which we sometimes justly condemn is the profitless squabble of words over frivolous bills or selfish party issues. It would be hard to conceive of there being too much talk about the practical concerns and processes of government. Such talk it is which, when earnestly and purposefully conducted, clears the public mind and shapes the demands of public opinion."
Classification of documents is a concern of the Congress. It is, however, no concern of the courts, as I see it, how a [p640] document is stamped in an Executive Department or whether a committee of Congress can obtain the use of it. The federal courts do not sit as an ombudsman refereeing the disputes between the two other branches. The federal courts do become vitally involved whenever their power is sought to be invoked either to protect the press against censorship as in New York Times Co. v. United States, 403 U.S. 713, or to protect the press against punishment for publishing "secret" documents or to protect an individual against his disclosure of their contents for any of the purposes of the First Amendment.
Forcing the press to become the Government's co-conspirator in maintaining state secrets is at war with the objectives of the First Amendment. That guarantee was designed in part to ensure a meaningful version of self-government by immersing the people in a "steady, robust, unimpeded, and uncensored flow of opinion and reporting which are continuously subjected to critique, rebuttal, and re-examination." Branzburg v. Hayes, post, at 715 (DOUGLAS, J., dissenting); Brandenburg v. Ohio, 395 U.S. 444; Stanley v. Georgia, 394 U.S. 557, 564; Lamont v. Postmaster General, 381 U.S. 301, 308 (BRENNAN, J., concurring); New York Times Co. v. Sullivan, 376 U.S. 254, 270. As I have said, in dissent, elsewhere, e.g., Branzburg, supra; Kleindienst v. Mandel, post, at 771, that Amendment is aimed at protecting not only speakers and writers but also listeners and readers. The essence of our form of governing was at the heart of Mr. Justice Black's reminder in the Pentagon Papers case that "[t]he press was protected so that it could bare the secrets of government and inform the people." 403 U.S., at 717 (concurring opinion). Similarly, Senator Sam Ervin has observed: "When the people do not know what their government is going, those who govern are not accountable for their actions—and accountability is basic to the democratic system. By using devices of secrecy, the [p641] government attains the power to 'manage' the news and through it to manipulate public opinion." Ramsey Clark as Attorney General expressed a similar sentiment: "If government is to be truly of, by, and for the people, the people must know in detail the activities of government. Nothing so diminishes democracy as secrecy." And see Meiklejohn, The First Amendment Is An Absolute, 1961 Sup. Ct. Rev. 245; Press Freedoms Under Pressure: Report of the Twentieth Century Fund Task Force on the Government and the Press 109-117 (1972) (background paper by Fred Graham on access to news); M. Johnson, The Government Secrecy Controversy 39-41 (1967).
Jefferson in a letter to Madison, dated December 20, 1787, posed the question "whether peace is best preserved by giving energy to the government, or information to the people," and then answered, "This last is the most certain, and the most legitimate engine of government." 6 Writings of Thomas Jefferson 392 (Memorial ed. 1903).
Madison at the time of the Whiskey Rebellion spoke in the House against a resolution of censure against the groups stirring up the turmoil against that rebellion.
   "'If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people.'" Brant, The Madison Heritage, 35 N.Y.U. L. Rev. 882, 900.
Yet, 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, the Government usually suppresses damaging news but [p642] highlights favorable news. In this filtering process the secrecy stamp is the officials' tool of suppression and it has been used to withhold information which in "99½%" of the cases would present no danger to national security. To refuse to publish "classified" reports would at times relegate a publisher to distributing only the press releases of Government or remaining silent; if he printed only the press releases or "leaks" he would become an arm of officialdom, not its critic. Rather, in my view, when a publisher obtains a classified document he should be free to print it without fear of retribution, unless it contains material directly bearing on future, sensitive planning of the Government. By that test Beacon Press could with [p643] impunity reproduce the Pentagon Papers inasmuch as their content "is all history, not future events. None of it is more recent than 1968." New York Times Co. v. United States, 403 U.S., at 722 n. 3 (concurring opinion).
The late Mr. Justice Harlan in the Pentagon Papers case said in that situation the courts had only two restricted functions to perform: first, to ascertain whether the subject matter of the dispute lies within the proper compass of the President's constitutional power; and second, to insist that the head of the Executive Department concerned—whether State or Defense—determine if disclosure of the subject matter "would irreparably impair the national security." Beyond those two inquiries, he concluded, the judiciary may not go. Id., at 757-758 (dissenting opinion).
My view is quite different. When the press stands before the court as a suspected criminal, it is the duty of the court to disregard what the prosecution claims is the executive privilege and to acquit the press or overturn the ruling or judgment against it, if the First Amendment and the assertion of the executive privilege conflict. For the executive privilege—nowhere made explicit in the Constitution—is necessarily subordinate to the express commands of the Constitution.
United States v. Curtiss-Wright Corp., 299 U.S. 304, involved the question whether a proclamation issued by the President, pursuant to a Joint Resolution of the [p644] Congress, was adequate to sustain an indictment. The Court, in holding that it was, discussed at length the power of the President. The Court said that the power of the President in the field of international relations does not require as a basis an Act of Congress; but it added that his power "like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution." Id., at 320.
When the Executive Branch launched a criminal prosecution against the press, it must do so only under an Act of Congress. Yet Congress has no authority to place the press under the restraints of the executive privilege without "abridging" the press within the meaning of the First Amendment.
In related and analogous situations, federal courts have subordinated the executive privilege to the requirements of a fair trial.
Mr. Chief Justice Marshall in the trial of Aaron Burr ruled "[t]hat the president of the United States may be subpoenaed, and examined as a witness, and required to produce any paper in his possession, is not controverted." United States v. Burr, 25 F. Cas. 187, 191 (No. 14,694) (CC Va. 1807). Yet he "may have sufficient motives for declining to produce a particular paper, and those motives may be such as to restrain the court from enforcing its production." Ibid. A letter to the President, he said, "may relate to public concerns" and not be "forced into public view." Id., at 192. But where the paper was shown "to be essential to the justice of the case," ibid., "the paper [should] be produced, or the cause be continued." Ibid.
Jencks v. United States, 353 U.S. 657, is in that tradition. It was a criminal prosecution for perjury, the telling evidence against the accused being the testimony of Government investigators. The defense asked for contemporary notes made by agents at the time. Refusal [p645] was based on their confidential character. We held that to be reversible error.
   "We hold that the criminal action must be dismissed when the Government, on the ground of privilege, elects not to comply with an order to produce, for the accused's inspection and for admission in evidence, relevant statements or reports in its possession of government witnesses touching the subject matter of their testimony at the trial. Accord, Roviaro v. United States, 353 U.S. 53, 60-61. The burden is the Government's, not to be shifted to the trial judge, to decide whether the public prejudice of allowing the crime to go unpunished is greater than that attendant upon the possible disclosure of state secrets and other confidential information in the Government's possession." Id., at 672.
Congress enacted the so-called Jencks Act, 18 U.S.C. § 3500, regulating the use of Government documents in criminal prosecutions. We sustained that Act. Scales v. United States, 367 U.S. 203, 258. Under the Act a defendant "on trial in a federal criminal prosecution is entitled, for impeachment purposes, to relevant and [p646] competent statements of a government witness in possession of the Government touching the events or activities as to which the witness has testified at the trial.... The command of the statute is thus designed to further the fair and just administration of criminal justice, a goal of which the judiciary is the special guardian." Campbell v. United States, 365 U.S. 85, 92. And see Clancy v. United States, 365 U.S. 312.
The prosecution often dislikes to make public the identity of the informer on whose information its case rests. But his identity must be disclosed where his testimony is material to the trial. Roviaro v. United States, 353 U.S. 53. In other words, the desire for Government secrecy does not override the demands for a fair trial. And see Scher v. United States, 305 U.S. 251, 254. The constitutional demands for a fair trial, implicit in the concept of due process, In re Murchison, 349 U.S. 133, 136, override the Government's desire for secrecy, whether the identity of an informer or the executive privilege be involved. And see Smith v. Illinois, 390 U.S. 129.
The requirements of the First Amendment are not of lesser magnitude. They override any claim to executive privilege. As stated in United States v. Curtiss-Wright Corp., supra, the class of executive privilege "like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution." 299 U.S., at 320.

## III

Aside from the question of the extent to which publishers can be penalized for printing classified documents, surely the First Amendment protects against all inquiry into the dissemination of information which, although once classified, has become part of the public domain.
To summon Beacon Press through its officials before the grand jury and to inquire into why it did what it did [p647] and its publication plans is "abridging" the freedom of the press contrary to the command of the First Amendment. In light of the fact that these documents were part of the official Senate record, Beacon Press has violated no valid law, and the grand jury's scrutiny of it reduces to "[e]xposure purely for the sake of exposure." Uphaus v. Wyman, 360 U.S., at 82 (BRENNAN, J., dissenting). As in United States v. Rumely, 345 U.S. 41, where a legislative committee inquired of a publisher of political tracts as to its customers' identities, "[i]f the present inquiry were sanctioned, the press would be subjected to harassment that in practical effect might be as serious as censorship." Id., at 57 (concurring opinion). Under our Constitution the Government has no surveillance over the press. That includes, as we held in New York Times Co. v. United States, 403 U.S. 713, the prohibition against prior restraints. Yet criminal punishment for or investigations of what the press publishes, though a different species of abridgment, is nonetheless within the ban of the First Amendment.
The story of the Pentagon Papers is a chronicle of suppression of vital decisions to protect the reputations and political hides of men who worked an amazingly successful scheme of deception on the American people. They were successful not because they were astute but because the press had become a frightened, regimented, submissive instrument, fattening on favors from those in power and forgetting the great tradition of reporting. To allow the press further to be cowed by grand [p648] jury inquiries and prosecution is to carry the concept of "abridging" the press to frightening proportions.
What would be permissible if Beacon Press "stole" the Pentagon Papers is irrelevant to today's decision. What Beacon Press plans to publish is matter introduced into a public record by a Senator acting under the full protection of the Speech or Debate Clause. In light of the command of the First Amendment we have no choice but to rule that here government, not the press, is lawless.
I would affirm the judgment of the Court of Appeals except as to Beacon Press, in which case I would reverse.

## Notes

* ↑ The Speech or Debate Clause included in Art. I, § 6, cl. 1, of the Constitution provides as respects Senators and Representatives that "for any Speech or Debate in either House, they shall not be questioned in any other Place."
* ↑ And see United States v. Johnson, 383 U.S. 169, 172, 177; and Tenney v. Brandhove, 341 U.S. 367, 376.
* ↑ See Developments In The Law—The National Security Interest and Civil Liberties, 85 Harv. L. Rev. 1130, 1207-1215 (1972); Note, The Right of Government Employees to Furnish In- formation to Congress: Statutory and Constitutional Aspects, 57 Va. L. Rev. 885-887 (1971); Berger, Executive Privilege v. Congressional Inquiry, 12 U.C.L.A. L. Rev. 1044 (1965); Schwartz, Executive Privilege and Congressional Investigatory Power, 47 Calif. L. Rev. 3 (1959); Executive Privilege: The Withholding of Information by the Executive, Hearing on S. 1125 before the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary, 92d Cong., 1st Sess. (1971). There is no express statutory authority for the classification procedure used currently by the bureaucracies, although it has been claimed that Congress has recognized it in such measures as the exemptions from the disclosure requirements of the Freedom of Information Act, 5 U.S.C. § 552 (b) and the espionage laws, 18 U.S.C. §§ 792-799. Rather, the classification regime has been implemented through a series of executive orders described in Developments In The Law, supra, at 1192-1198. It has also been claimed that several sections of Art. II (such as the designation of the President as Commander in Chief of the Army and Navy) confer upon the Executive an inherent power to classify documents. See Report of the Commission on Government Security, S. Doc. No. 64, 85th Cong., 1st Sess., 158 (1957).
* ↑ Hearings on S. 1125, supra, n. 3, at 517-518. One estimate of the number of officials who can classify documents is even higher. In the Department of Defense alone, 803 persons have the authority to classify documents Top Secret; 7,687 have permission to stamp them Secret, and 31,048 have the authorization to denominate papers Confidential. United States Government Information Policies and Practices—The Pentagon Papers, Hearings before a Subcommittee of the House Committee on Government Operations, 92d Cong., 1st Sess., pt. 2, p. 599 (statement of David Cooke, Deputy Assistant Secretary of Defense).
* ↑ Senator Fulbright, chairman of the Senate Foreign Relations Committee, recently testified that his committee had been so unsuccessful in obtaining accurate information about the Vietnam war from the Executive Branch that it was required to hire its own investigators and send them to Southeast Asia. Hearings on S. 1125, supra, n. 3, at 206.
* ↑ Congressional Government 303-304 (1885).
* ↑ Secrecy in a Free Society, 213 Nation 454, 456 (1971).
* ↑ Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act, 20 Ad. L. Rev. 263, 264 (1967).
* ↑ United States Government Information Policies and Practices—The Pentagon Papers, Hearings before a Subcommittee of the House Committee on Government Operations, 92d Cong., 1st Sess., pt. 1, p. 97; Cong. Horton, The Public's Right to Know, 77 Case & Comm. 3, 5 (1972). We are told that the military has withheld as confidential a large selection of photographs showing atrocities against Vietnamese civilians wrought by both Communist and United States forces. Even a training manual devoted to the history of the Bolshevik revolution was dubbed secret by the military. Hearings, supra, pt. 3, at 966, 967 (testimony of former classification officer). And ordinary newspaper clippings of criticism aimed at the military have been routinely marked secret. Id., pt. 1, at 100. Former Justice and former Ambassador to the United Nations Arthur Goldberg has stated: "I have read and prepared countless thousands of classified documents. In my experience, 75 percent of these documents should never have been classified in the first place; another 15 percent quickly outlived the need for secrecy; and only about 10 percent genuinely required restricted access over any significant period of time." Id., pt. 1, at 12.
* ↑ Moreover, I would not even permit a conviction for the publication of documents related to future and sensitive planning where the jury was permitted, as it was in United States v. Drummond, 354 F. 2d 132, 152 (CA2), to consider the fact that the documents had been classified by the Executive Branch pursuant to its present overbroad system which, in my view, unnecessarily sweeps too much nonsensitive information into the locked files of the bureaucracies. In general, however, I agree that there may be situations and occasions in which the right to know must yield to other compelling and overriding interests. As Professor Henkin has observed, many deliberations in Government are kept confidential, such as the proceedings of grand juries or our own Conferences, despite the fact that the breadth of public knowledge is thereby diminished. Henkin, The Right To Know And The Duty To Withhold: The Case Of The Pentagon Papers, 120 U. Pa. L. Rev. 271, 274-275 (1971).
* ↑ In Alderman v. United States, 394 U.S. 165, we took a like course in requiring the prosecution to disclose to the defense records of unlawful electronic surveillance: "It may be that the prospect of disclosure will compel the Government to dismiss some prosecutions in deference to national security or third-party interests. But this is a choice the Government concededly faces with respect to material which it has obtained illegally and which it admits, or which a judge would find, is arguably relevant to the evidence offered against the defendant." Id., at 184. A different rule obtains in civil suits where the government is not the moving party but is a defendant and has specified the terms on which it may be sued. United States v. Reynolds, 345 U.S. 1, 12.
* ↑ Republication of what has filled the Congressional Record is commonplace. Newspapers, television, and radio use its contents constantly. I see no difference between republication of a paragraph and republication of material amounting to a book. Once a document or a series of documents is in the record of the Senate or House or one of its committees it is in the public domain.
* ↑ It is conceded that all of the material which Beacon Press has undertaken to publish was introduced into the Subcommittee record and that this record is open to the public. See Brief for United States 3.