Russian Hacks Reveal Facts
There may be much to be disturbed about regarding Russian hacks (allegedly) of the Democratic National Committee and the emails of persons affiliated with Mrs. Clinton’s presidential campaign. We presume, for the sake of this Opinion, that the hacks occurred. The theft of information bearing on an American presidential election by a foreign government is no small matter. Yet we realize that espionage is an everyday affair. The U.S. itself, regrettably, has its own sordid history in interfering in foreign elections.
But a singular focus on the thief’s identity amid loud protestations from its victims misses a more important point – truth. To date, there is no hard proof that any of the revealed information was anything other than wholly true. Unless we have missed it, the victims themselves have made no claim of falsity or manipulation of the stolen material.
Evidence that the published emails were changed or falsified would cast the current state of affairs in a different light. It would be a critical slice of information that the American people must see. That information, if it exists, should be made available at the earliest possible moment. It would be proof of an attempt to undermine the Constitution and would significantly elevate the gravity of these events.
Instead, the Russian hacks and the subsequent data publication are no more than the Pentagon Papers redux (or an Eric Snowden encore), but without the substantive impact. Even President Obama observed that the leaked information was “pretty routine stuff.” We differ. Deeds of political impropriety, though perhaps “routine” to some, bear on the virtue and integrity of the actors. Readers are well familiar with the Snowden events. But the 1971 leak of the Pentagon Papers is a relevant analogy to the Russian hacks leading to publication of the emails. Both cases involve important considerations of the Constitutionally protected right of freedom of speech and it’s central place in American democracy.
The Pentagon Papers: A Brief History
In 1967, as the war raged in Vietnam, Secretary of Defense Robert McNamara requested the Department of Defense to prepare a comprehensive study dating back to 1945 of the U.S. involvement in, and policy with respect to, Vietnam. In 1968, over 500,000 U.S. troops were in Vietnam. The study was to be top secret. Thirty-six policy experts, historians, and military analysts participated in preparing the report.
Daniel Ellsberg joined the Defense Department in the 1960’s as a Special Assistant to the Assistant Secretary of Defense for International Security Affairs. Ellsberg was assigned to draft covert plans to escalate the war. He was also one of the 36 selected to work on the secret Defense Department report.
By 1971 Ellsberg had become increasingly disillusioned with the war and believed that the U.S. government was misleading the American people regarding the likelihood of victory. With access to the complete study, he covertly photocopied most of the report (now known as the Pentagon Papers), and turned the material over to both the New York Times and the Washington Post. The Times (along with the Post), over threats from the Nixon administration, published the Pentagon Papers. The published documents revealed that the U.S. government, from President Truman through President Johnson, had regularly misled the public regarding both the conduct of the War and the prospects for victory. Publication of the Pentagon Papers further solidified public opposition to the War.
Freedom of the Press Versus National Security
The Nixon administration fought hard to prevent publication of the Pentagon Papers. For the first time in American history the President claimed that the federal government had the right to restrain publication of information on the grounds of national security. The government’s claim thus pitted the First Amendment protected right of freedom of speech against claims of national security interest by the President.
An initial injunction preventing publication was obtained against the Times. However, shortly thereafter the Government failed to get a similar injunction to prevent publication by the Post. An appeal immediately followed and the matter made its way to the Supreme Court within weeks.
In New York Times v. U.S., 403 U.S. 713 (1971), the Supreme Court ruled that prior restraint of publication of the Pentagon Papers was unconstitutional. The Court stated that “only a free and unrestrained press can effectively expose deception in government.” As Justice Hugo Black wrote, “in revealing the workings of government that led to the Vietnam War, the newspapers nobly did precisely that which the founders hoped and trusted they would do.”
The Court concluded that this First Amendment right superseded the President’s claim that publication of the Pentagon Papers would jeopardize national security: “The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodies in the First Amendment.”
Two groups of Supreme Court justices led the majority opinion. The first group took an absolutist view. They believed that, regardless of the nature of any threat to national security from any published material, the courts simply do not have the power to suppress that publication. The second group believed that a restriction on the press could only be imposed to prevent “direct, immediate and irreparable damage” to the country, a standard that was not met in the case.
Theft and Publication of the Pentagon Papers vs. Russian Hacks and Publication of DNC Emails
Publication of the DNC and related emails (whether the result of Russian hacks or leaks), is indistinguishable in effect from publication of the leaked Pentagon Papers. In both cases, the published information contained evidence of deception – by public officials in the case of the Pentagon Papers, and by leaders of the Democratic Party and members of Mrs. Clinton’s campaign in the current circumstances. Mrs. Clinton sought to be President.
In each instance, the information published posed no threat of direct, immediate and irreparable damage to the United States. By revealing questionable activity by those who were intimately associated with, and involved with, one of the two leading candidates for the Presidency, the publishers of that information “nobly did precisely what the founders hoped and trusted they would do.” As to truth seeing the light of day for the American people to judge, the identity of the revealer, whether it be Daniel Ellsberg or the Russian government, is of no import.
Publication of Hacked Emails Serves the Same Purpose as the Publication of the Pentagon Papers
To those who claim that the hacked (or leaked) emails may have unfairly changed the outcome of the election we ask this. Would it have been better for the war in Vietnam to have longer continued, or for the U.S. government’s clandestine information gathering revealed by Eric Snowden to have remained unknown in the dark recesses of the cyber plans of the United States government? The American people are entitled to make their judgments based on the truth as it may best be known. Whatever consequences may follow from knowledge of the truth, so be it. Things that are made secret have a way of coming to light.
We await the presentation of any hard facts to prove the invalidity of any of the published emails.