The Nation: Toward the Legal Showdown

AFTER a fortnight of legal fencing, the showdown shaped up late last week before the U.S. Supreme Court. A Government bent on preserving secrets for the sake of national security faced a press determined to print the facts as laid down in the now-celebrated Pentagon papers. All week long, the Government fought a running battle with restraining orders against two of the country’s most respected newspapers. Attorneys for the New York Times and the Washington Post pounded away at the seldom-invoked practice of “prior restraint,” arguing that the public’s right to know and the First Amendment guarantee of press freedom ruled out pre-publication censorship.

The rare Saturday session in the marble Supreme Court chamber was testimony to the importance of the two cases at issue. Dressed somberly, the opposing attorneys prepared papers for their historic confrontation before the nine robed Justices. All 300 seats in the chamber were full and newsmen stood shoulder to shoulder in the press alcove. At precisely 11 a.m., the red velvet curtains parted, the Justices took their seats, and Solicitor General Erwin N. Griswold, distinguished former dean of Harvard Law School, launched a 53-minute opening argument.

No Quick Ruling. Griswold urged the court to establish a standard that would allow the Government to prevent newspapers from publishing classified material that he claimed would do “great and irreparable harm” to the nation’s security. In lower courts, the Government had alleged that willful disclosure of secret information violated both the Espionage Act and an executive order dealing with classified material. Arguing for the Times, Alexander Bickel, the polished Yale law professor, contended that the Government had failed to show there was a “direct and immediate link” between “the fact of publication” and any “grave event” that endangered the nation. When Griswold contended in his summary that the First Amendment was “not intended to make it impossible for Government to function,” Justice Potter Stewart observed that unless there was conclusive proof that publication of documents endangered national security, then “prior restraint is presumptively unconstitutional.”

To the disappointment of those who sought a quick ruling, Chief Justice Warren Burger simply announced that “the case is submitted,” and gave no indication of when a decision would be handed down. It was expected early this week, however, and supporters of the Times and Post took heart from the narrow (5 to 4) decision to listen to oral arguments; the dissenting Justices (Douglas, Hugo Black, William Brennan, Thurgood Marshall) did not even think the Government’s case was worth considering. If only one of the other five joins them—and Stewart is considered an active possibility—then the papers will have won their battle against prior restraint. But the victory would not allow the press to behave irresponsibly. The question before the court this week is only whether the press can be prevented in advance from publishing classified information. In any case, it can still be punished after the fact.

Shaky Ground. Criminal proceedings can also be brought against individuals who steal classified documents. The Justice Department plans to prosecute the thief, Daniel Ellsberg—and perhaps Times Reporter Neil Sheehan as well for his role in receiving the material. Thus the possibility exists that while the Times could gain the right to publish under a favorable Supreme Court decision, its source and perhaps one of its own staffers might still go to prison. Such a situation could raise cruel moral questions for editors in the future.

But whatever happens to the Times or its source after the decision, prominent legal scholars speculate that the Government may be on shaky ground in claiming that national security justifies prior restraint. Even if that were so, says the University of Chicago’s Philip B. Kurland, “it seems clear enough that those who indiscriminately stamp documents as ‘confidential,’ ‘secret’ or ‘top secret’ cannot be the judges of their own judgments.” Noting that “our legal tradition has special repugnance toward prior restraint,” Harvard’s Paul A. Freund maintained that “risk for risk, the law has opted for underkill in duels over publication.”

The week had started with Government attorneys appealing pro-press rulings by federal district courts. Judges Murray Gurfein in New York and Gerhard Gesell in Washington had concluded independently that the Government had not proved its case against the papers, leaving both in a position to resume publication of Pentagon documents. Through temporary orders from appellate judges, the Government successfully stopped the Times and Post from running further stories, only to have the material pop up across the country.

Task Force. The Boston Globe published part of the Pentagon study and found itself in court facing U.S. District Judge Anthony Julian, 69, a notoriously cautious jurist who was in no hurry to decide the case. Abetted by Globe attorneys, who seemed in no hurry either, he put the case off until this week and ordered the Globe to surrender its documents temporarily for safekeeping.

The pace of appeal in both New York and Washington, which seemed almost indecently hasty to experts accustomed to the usual leisurely legal process, appeared painfully slow to editors at the Times and the Post. In every court appearance, their attorneys stressed the need for speed while the Government stubbornly sought one restraining order after another. Concessions of a sort were offered, in the form of a “special task force” to “expedite reclassification” of the Pentagon study within 45 days. No dice, said the newspapers, and one judge observed that the mere suggestion of reclassification indicated that the Pentagon papers were overclassified in any event.

In New York the Court of Appeals for the Second Circuit ruled 5-3 at midweek in favor of further secret hearings before District Judge Gurfein, at which the Government could argue for withholding documents on ground that they posed “grave and immediate danger” to national security. The Times, charging that further restraint “imposes an insupportable burden on a free press” and arguing that “urgent issues of overriding public importance” were involved, promptly appealed to the Supreme Court.

Endangered Negotiations. The Post’s scenario before the Court of Appeals in Washington was slightly different. Solicitor General Griswold argued that the “integrity of the institution of the presidency” was at stake in the Post case and implied that if the press were free to publish classified material on general principle, such sensitive international negotiations as the SALT talks might be endangered. The court was unimpressed and ruled 7-2 that Griswold had failed to make a case. The next day the Government lost its bid for a second review, again 7-2. The majority opinion declared tartly: “We conclude that we are fully apprised of all material considerations and that the matter is now ripe for presentation to the Supreme Court.” Thus the stage was set for this week’s historic decision.