“security —or “corporate security” or “university security” or the security of any

4.2.12 WC: 191694 “security —or “corporate security” or “university security” or the security of any institution—should be subject to rigorous challenge, in an effort to separate the contrived from the authentic. But this will not eliminate all conflict. There will be some cases of real and intractable conflict between security and freedom. Our Constitution purports to resolve doubts in favor of freedom, but there are cases where even that presumption will not resolve the problem: where the authentic claims of national security will seem to outweigh the powerful presumption in favor of free expression. In those cases we need to develop adequate mechanisms for resolving the dispute. Resolution cannot be left entirely in the hands of those responsible for security, such as the executive or the military. Our experience in delegating decision-making authority to these institutions in times of crisis 1s discouraging. It has been indeed fortunate for the survival of our liberties that there have always been some Americans—often only a small group and sometimes not those directly affected—willing to challenge governmental high-handedness, even during periods of crisis. Under our constitutional system, it takes only a single person challenging the government to create a case or controversy suitable for judicial resolution. This is not to suggest that justice should remain blind to the existence of a real emergency endangering the survival of the nation. As Justice Arthur Goldberg once wrote: “While the Constitution protects against the invasion of individual rights, it is not a suicide pact.” But it is precisely during times of crisis—when the balance between momentary expediency and enduring safeguards often goes askew—that courts can perform their most critical function: to preserve or restore a sense of perspective. In the eternal struggle between liberty and security we have come to expect the executive and legislative branches to champion the latter. The judiciary—with its lifetime tenure, its tradition of independence, and its unique stewardship over our irrepealable rights—is the institution most able to resist the passing fears and passions of a dangerous moment. But liberty is not a commodity that can be obtained once and for all, and then passively held on to. The battle for civil liberties, as Roger Baldwin, the late founder of the ACLU, liked to say, “never stays won.” (A variation on the Biblical admonition that justice must be actively pursued, because it too “never stays won.”) The struggle must be endured by every new generation and in each new crisis. What Thomas Paine taught us on the eve of our own Revolution remains true today: “Those who expect to reap the blessings of freedom must. . . undergo the fatigue of supporting it.” The stakes on both sides are much higher when the government seeks to censor dangerous “leaks” than when it seeks to censor obscenity or other merely offensive or disturbing speech. The danger of publication is greater and the danger of repression is also greater. There are serious risks in not censoring, and there are serious risks in censoring. Striking the proper constitutional balance between these risks is a daunting challenge that every democracy must confront. Unfortunately it is a challenge that too few democracies—including our own—have confronted wisely and correctly.*! 120 HOUSE_OVERSIGHT_017207