by Neil Sheehan
Even if these decisions, now being revealed in the Pentagon papers, had been generally understood by the public at the time, we are not at all sure that in the climate of those days, the results would have been any different. Given the fear of Communist penetration and aggression throughout the ’50’s and most of the ’60’s, it is quite likely that the American public would have supported the basic rationale on escalation even if the respective Administrations had been as forthcoming as democratic procedures demanded.
The fact remains that out of the publication of this material, the American people emerge the gainers. They have gained in knowledge of the past, which should serve them well in the future. They have gained in an understanding of their rights under the Constitution. And they have gained in the perennial effort of free men to control their government rather than vice versa.
—July 4, 1971
Appendix 2
Court Records
Summary of Court Proceedings
United States of America v. New York Times Company
June 13, 1971, The New York Times published the first article in its series on the Pentagon study.
June 15, the Government obtained from the U.S. District Court a temporary restraining order prohibiting The Times from publishing further installments until a hearing on its motion for a preliminary injunction against The Times could take place.
June 17-18, the hearings were held part in public and part in camera (as were all hearings in both these cases) before the court.
June 19, the District Court released its decision to deny the motion (pp. 665-672). The Government obtained a temporary stay of the decision, continuing the prohibition, from the U.S. Court of Appeals pending its appeal.
June 22, the appeal was argued before the full bench (eight judges) of the Court of Appeals.
June 23, the Court of Appeals in a 5-3 decision ruled to continue the stay and remanded the case to the District Court for further hearings (p. 673).
The New York Times then petitioned the Supreme Court for certiorari (to review the case). The petition was granted (No. 1873).
United States of America v. The Washington Post Company.
June 18, The Washington Post began its series on the Pentagon study. The Government sought and was refused a temporary restraining order from the U.S. District Court (pp. 674-675).
June 19, the Government petitioned the U.S. Court of Appeals, who reversed the decision (in a 2-1 vote) and remanded the case to the District Court for further hearings (pp. 675-680). The Post was restrained from publishing.
June 21, after the hearings, the District Court ruled to deny the Government’s motion (pp. 680-683). The Government obtained a temporary stay from the Court of Appeals pending its appeal.
June 23, the Court of Appeals, now in full bench (nine judges), affirmed 7-2 the District Court’s decision, but granted a stay pending the Government’s appeal to the Supreme Court (pp. 683-686).
The Government then petitioned for certiorari to the Supreme Court which, after denying the Government’s request for further in camera proceedings, granted the petition (No. 1885). The case was then merged with The New York Times case before the Supreme Court.
June 26, the Oral Arguments of the parties—The Times, the Government and The Post—were heard before the Supreme Court (pp. 687-724).
June 30, the Supreme Court handed down its 6-3 decision to deny any injunction against either newspaper (pp. 725-756).
UNITED STATES OF AMERICA, Plaintiff, v. NEW YORK TIMES COMPANY, et al, Defendants.
Decision of U.S. District Court, Southern District of New York, 71 Civ. 2662
June 19,1971
On June 12, June 13 and June 14, 1971 the New York Times published summaries and portions of the text of two documents—certain volumes from a 1968 Pentagon study relating to Vietnam and a summary of a 1965 Defense Department study relating to the Tonkin Gulf incident. The United States sues to enjoin the Times from “further dissemination, disclosure or divulgence” of materials contained in the 1968 study of the decision making process with respect to Vietnam and the summary of the 1965 Tonkin Gulf study. In its application for a temporary restraining order the United States also asked the Court to order the Times to furnish to the Court all the documents involved so that they could be impounded pending a determination. On June 15 upon the argument of the order to show cause the Court entered a temporary restraining order against the New York Times in substance preventing the further publication until a determination by the Court upon the merits of the Government’s application for a preliminary injunction. The Court at that time, in the absence of any evidence, refused to require the documents to be impounded.
The Government contends that the documents still unpublished and the information in the possession of the Times involves a serious breach of the security of the United States and that the further publication will cause “irreparable injury to the national defense.”
The articles involved material that has been classified as Top Secret and Secret, although the Government concedes that these classifications are related to volumes rather than individual documents and that included within the volumes may be documents which should not be classified in such high categories. The documents involved are a 47 volume study entitled “HISTORY OF UNITED STATES DECISION MAKING PROCESS ON VIETNAM POLICY” and a document entitled “THE COMMAND AND CONTROL STUDY OF THE TONKIN GULF INCIDENT DONE BY THE DEFENSE DEPARTMENT’S WEAPONS SYSTEM EVALUATION GROUP IN 1965.” There is no question that the documents are in the possession of the Times.
The issue of fact with respect to national security was resolved in the following manner. In view of the claim of the Government that testimony in support of its claim that publication of the documents would involve a serious security danger would in itself be dangerous the Court determined that under the “Secrets of State” doctrine an in camera proceeding should be held at which only the attorneys for each side, witnesses for the Government and two designated representatives of The New York Times would be present. It was believed that this would enable the Government to present its case forcefully and without restraint so that the accommodation of the national security interest with the rights of a free press could be determined with no holds barred. It was with reluctance that the Court granted a hearing from which the public was excluded, but it seemed that there was no other way to serve the needs of justice. My finding with respect to the testimony on security will be adverted to below.
1. This case is one of first impression. In the researches of both counsel and of the Court nobody has been able to find a case remotely resembling this one—where a claim is made that national security permits a prior restraint on the publication of a newspaper. The Times in affidavits has indicated a number of situations in which classified information has been “leaked” to the press without adverse governmental or judicial action. It cites news stories and the memoirs of public officials who have used (shortly after the events) classified material in explaining their versions of the decision making process. They point out that no action has ever been taken against any such publication of “leaks.” The Government on the other hand points out that there has never been an attempt to publish such a massive compilation of documents which is probably unique in the history of “leaks.” The Vietnam study had been authorized by Secretary of Defense McNamara, continued under Secretary Clifford and finally delivered to Secretary of Defense Laird. The White House was not given a copy. The work was done by a group of historians, including certain persons on contract with the Government. It is actually called a “history.” The documents in the Vietnam study relate to the period from 1945 to early 1968. There is no reference to any material subsequent to that date. The Tonkin Gulf incident analysis was prepared in 1965, six years ago. The Times contends that the material is historical and that the circumstance that it involves the decision making procedures of the Government is no different from the descriptions that have emerged in the writings of diarists and memoirists.
The Government on the other hand contends that by reference to the totality of the studies an enemy might learn something about United States methods which he does not know, that references to past relationships with foreign governments might affect the conduct of our relations in the future and that the duty of public officials to advise their superiors frankly and freely in the decision making process would be impeded if it was believed that newspapers could with impunity publish such private information. These are indeed troublesome questions.
This case, in the judgment of the Court, was brought by the Government in absolute good faith to protect its security and not as a means of suppressing dissident or contrary political opinion. The issue is narrower—as to whether and to what degree the alleged security of the United States may “chill” the right of newspapers to publish. That the attempt by the Government to restrain the Times is not an act of attempted precensorship as such is also made clear by the historic nature of the documents themselves. It has been publicly stated that the present Administration had adopted a new policy with respect to Vietnam. Prior policy must, therefore, be considered as history rather than as an assertion of present policy the implementation of which could be seriously damaged by the publication of these documents.
2. The Times contends that the Government has no inherent power to seek injunction against publication and that the power of the Court to grant such an injunction can be derived only from a statute. The Government has asserted a statutory authority for the injunction, namely, the Act of June 25, 1948, c. 645, 62 Stat. 736; Sept. 23, 1950, c. 1024, Tit. I, Sec. 18, 64 Stat. 1003 (18 U.S.C. 793). The Government contends moreover, that it has an inherent right to protect itself in its vital functions and that hence an injunction will lie even in the absence of a specific statute.
There seems little doubt that the Government may ask a Federal District Court for injunctive relief even in the absence of a specific statute authorizing such relief.
The Supreme Court has held that “(o)ur decisions have established the general rule that the United States may sue to protect its interests . . . This rule is not necessarily inapplicable when the particular governmental interest sought to be protected is expressed in a statute carrying criminal penalties for its violation.” Wyandotte Co. v. U.S., 389 U.S. 191, 201-2 (1967).
In recent times the United States has obtained an injunction against the State of Alabama from enforcing the miscegenation laws of that State. U.S. v. Brittain, 319 F. Supp. 1058, 1061. The United States has been held entitled to restrain a collection of a tax because “the interest of the national government in the proper implementation of its policies and programs involving the national defense such as to vest in it the non-statutory right to maintain this action.” U.S. v. Arlington County, 326 F. 2d 929, 232-33 (4th Cir. 1964). Recently in U.S. v. Brand Jewelers, Inc., 318 F. Supp. 1293, 1299, a decision by Judge Frankel of this Court collects the authorities illustrating the various situations in which the classic case of In re Debs, 158 U.S. 564 (1895) has been cited. Accordingly, even in the absence of statute the Government’s inherent right to protect itself from breaches of security is clear.
That, however, is only the threshold question. Assuming the right of the United States and, indeed, its duty in this case to attempt to restrain the further publication of these documents, the Government claims and the Times denies that there is any statute which proscribes such publication. The argument requires an analysis of the various sections (792-799) contained in Chapter 37 of Tide 18 of the U.S. Criminal Code entitled “ESPIONAGE AND CENSORSHIP.” The statute seems to be divided into two parts. The first which for lack of a better term may be considered simple espionage, and the second, the publication of information. The Government relies upon Section 793. There are two subsections concerning which the question of interpretation has arisen. Subsection (d) deals with persons with lawful possession—“whoever lawfully having possession of any document, writing, code book, etc. . . . relating to the national defense or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation . . .” It seems clear that neither the Times nor the Government now claim that subsection (d) applies since it is fairly obvious that “lawful” possession means the possession of Government officials or others who have authorized possession of the documents. The Government, however, relies on subsection (e) which reads as follows:
“(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or”
It will be noted that the word “publication” does not appear in this section. The Government contends that the word “communicates” covers the publication by a newspaper of the material interdicted by the subsection. A careful reading of the section would indicate that this is truly an espionage section where what is prohibited is the secret or clandestine communication to a person not entitled to receive it where the possessor has reason to believe that it may be used to the injury of the United States or the advantage of any foreign nation. This conclusion is fortified by the circumstance that in other sections of Chapter 37 there is specific reference to publication. The distinction is sharply made in Section 794 entitled “Gathering or Delivering Defense Information to Aid Foreign Government.” Subsection (a) deals with peace-time communication of documents, writings, code books, etc. relating to national defense. It does not use the word “publication.” Subsection (b) on the other hand which deals with “in time of war” does punish anyone who “publishes” specific information “with respect to the movement, numbers, description, condition or disposition of any of the Armed Forces, ships, aircraft or war materials of the United States or with respect to the plans or conduct, or supposed plans or conduct of any naval or military operations, or with respect to any works or measures undertaken for or connected with, or intended for the fortification or defense of any place, or any other information relating to the public defense, which might be useful to the enemy . . .”
Similarly, in Section 797 one who publishes photographs, sketches, etc. of vital military and naval installations or equipment is subject to punishment. And finally, in Section 798 which deals with “Disclosure of Classified Information” there is a specific prohibition against one who “publishes” any classified information. This classified information is limited to the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or the communication intelligence activities of the United States or any foreign government; or obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes.
The Government does not contend, nor do the facts indicate, that the publication of the documents in question would disclose the types of classified information specifically prohibited by the Congress. Aside from the internal evidence of the language of the various sections as indicating that newspapers were not intended by Congress to come within the purview of Section 793, there is Congressional history to support the conclusion. Section 793 derives from the original espionage act of 1917 (Act
of June 15, 1917, Chap. 30, Title I, Sections 1, 2, 4, 6, 40 Stat. 217, 218, 219). At that time there was proposed in H.R. 291 a provision that “(d)uring any national emergency resulting from a war to which the United States is a party or from threat of such a war, the President may, by proclamation, prohibit the publishing or communicating of, or the attempting to publish or communicate any information relating to the national defense, which in his judgment is of such character that it is or might be useful to the enemy.” This provision for prior restraint on publication for security reasons limited to war time or threat of war was voted down by the Congress. In the debate Senator Ashhurst in a scholarly speech stated the problem as follows:
“Freedom of the press means simply, solely, and only the right to be free from a precensorship, the right to be free from the restraints of a censor. In other words, under the Constitution as amended by amendment No. 1, ‘freedom of the press’ means nothing except that the citizen is guaranteed that he may publish whatever he sees fit and not be subjected to pains and penalties because he did not consult the censor before doing so.”*
It would appear, therefore, that Congress recognizing the Constitutional problems of the First Amendment with respect to free press, refused to include a form of precensorship even in war time.
In 1957 the report of the United States Commission on Government Security in urging further safeguards against publication of matters affecting national security recognized that “any statute designed to correct this difficulty must necessarily minimize constitutional objections by maintaining the proper balance between the guarantee of the first amendment, on one hand, and required measures to establish a needed safeguard against any real danger to our national security.” Report of the United States Commission on Government Security 619-20 (1957).