606 DOUGLAS, J., dissenting 997 ernment 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 3941 (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. 999 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 high 7 Secrecy in a Free Society, 213 Nation 454, 456 (1971). 8 Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act, 20 Ad. L. Rev. 263, 264 (1967). DOUGLAS, J., dissenting 408 U.S. lights 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 "9912%" 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.10 By that test Beacon Press could with 9 United States Government Information Policies and PracticesThe 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. 10 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 606 DOUGLAS, J., dissenting 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 that 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 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). DOUGLAS, J., dissenting 408 U.S. 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 launches 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 606 DOUGLAS, J., dissenting 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 11 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. |