USA: Images, the Law and War

Images, the Law and War
<http://www.nytimes.com/2009/05/17/weekinreview/17liptak.htm>
By ADAM LIPTAK. May 17, 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.)

--snip--

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.

--snip--

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."