Fifty years ago today, with the New York Times and the Washington Post tied up in the Supreme Court over whether they could report on the leaked Pentagon Papers, a young Senator named Mike Gravel was taking matters into his own hands.
Gravel had just obtained a second copy of the Pentagon Papers from whistleblower (and, much later, Freedom of the Press Foundation co-founder) Daniel Ellsberg, through a midnight curbside handoff from Ben Bagdikian, an editor and journalist at the Post. In an act of remarkable bravery, Gravel convened a subcommittee meeting, and read from the Papers until one A.M., culminating in an emotional description of the violence of war. He then inserted 4,100 pages of the document into the Congressional Record.
In the morning, the Supreme Court cleared the Times and the Post to continue publishing, in one of the most important press freedom decisions in the court's history.
Gravel took action despite considerable nerves; he reportedly "had not slept for three nights, overwrought with fatigue and fear that he might be headed to prison." But he was also protected by the "Speech or Debate Clause" of the U.S. Constitution, which protects Congress members from arrest or inquiry for statements made on the floor of the House or Senate. Many state constitutions have similar forms of parliamentary immunity.
Still, a Gravel aide faced a subpoena from a federal grand jury empaneled to investigate the Senator's actions. Gravel moved to intervene, and the question of whether the aide could be compelled to testify also made its way to the Supreme Court. In Gravel v. United States, the Court issued a 5-4 opinion holding that Congressional aides and employees enjoy the same legal protection as the legislators themselves.
(The decision also narrowed the Speech or Debate Clause in part, explicitly limiting it to actions "essential to the deliberations" of the legislative body, and thus deeming it did not cover Gravel's transmitting the Papers for private publication. In a powerful dissent to that portion in particular, Justice William O. Douglas argued: "To allow the press further to be cowed by grand jury inquiries and prosecution is to carry the concept of 'abridging' the press to frightening proportions.")
Senator Gravel died this weekend at 91 years old. Without a doubt, his willingness to bring the Pentagon Papers to the public is one shining example that more lawmakers should follow.
But despite the fact that Gravel’s heroic actions in protest of the nation’s broken secrecy system would be his defining legacy, other members of Congress have largely not followed in his footsteps. From the CIA torture program to NSA surveillance to extrajudicial drone strikes, the US government has used the classification system to shield corruption, abuse, and illegal behavior from the American public. In many cases, courts have protected the executive branch from accountability. At the same time, they have harshly punished whistleblowers who come forward to the press.
Members of Congress enjoy a unique broad immunity to expose illegal government programs and lies. And yet, besides Senator Gravel, no one has chosen to use it. We hope in the future, more members of Congress will show the same bravery he did fifty years ago today.
