by Neil Sheehan
A. All right. We come in and say, “You can’t print this because it will gravely affect the security of the United States.” I think we would plainly be out.
Q. You would have a very shaky case on the facts. This, therefore, is a fact case, is it not? Until we can decide this case, we have to look at the facts, the evidence in this case that has been submitted under seal.
A. In large part, yes, Mr. Justice, but I am still trying to get some help from the background and the setting which I repeat, it is not irrelevant, that the concatenation of words here is the property of the United States, that this has been classified under executive orders approved by Congress, and that it obviously has been improperly acquired.
Q. That may have a great deal to do on the question of whether or not somebody is guilty of a criminal offense, but I submit it has very little to do with the basic First Amendment issue before this Court in this case.
A. All right, Mr. Justice, I repeat, unless we can show that this will have grave, and I think I would like to amend it—I know the Court’s order has said “immediate,” but I think it really ought to be “irreparable harm to the security of the United States.”
Justice Harlan:
Q. I would think with all due respect to my colleague that the question of classification would have an important bearing on the question of the scope of judicial review of an executive classification.
A. I think, Mr. Justice, that is true, but I also think the heart of our case is that the publication of the materials specified in my closed brief will, as I have tried to argue here, materially affect the security of the United States. It will affect lives. It will affect the process of the termination of the war. It will affect the process of recovering prisoners of war. I cannot say that the termination of the war or recovering prisoners of war is something which has an immediate effect on the security of the United States. I say that it has such an effect on the security of the United States that it ought to be the basis of an injunction in this case.
I would like to get to the question of the standard which was used by the District judge in this case. I think it is relevant to point out that on Page 267 of the transcript in the District Court before Judge Gesell, he said, “The court further finds that publication of the documents in the large may interfere with the ability of the Department of State in the conduct of delicate negotiations now in process—not in the past—now in process, or contemplated for the future whether these negotiations involve Southeast Asia or other areas of the world. This is not so much because of anything in the documents themselves, but rather results from the fact that it will appear to foreign governments that this Government is unable to prevent publication of actual Government communications when a leak such as the present one occurs.”
Thus the judge rejected as a standard in this matter the whole question of the ability of the Department of State, and that means the President, to whom the foreign relations are conferred by the Constitution, to conduct delicate negotiations now in process or contemplated for the future. I suggest to the Court that it is perfectly obvious that the conduct of delicate negotiations now in process or contemplated for the future has an impact on the security of the United States.
Now, the standard which the judge did apply is one which, with the benefit of 20-20 hindsight, I would have written differently. Executive Order 10501 provides the basis for security classification issued by President Eisenhower in 1953, after a comprehensive study by a commission on these matters. The definition of top secret in Section 1(A) of Executive Order 10501 is, “Top-Secret shall be authorized by appropriate authority only for defense information or material which requires the highest degree of protection. The Top-Secret classification shall be applied only to that information or material that the defense aspect of which is paramount and the unauthorized disclosure of which could result in exceptionally grave damage to the nation, such as”—this was not intended to be all-inclusive, but illustrative—“such as leading to a definite break in diplomatic relations affecting the defense of the United States, an armed attack against the United States or its allies, a war or the compromise of military or defense plans or intelligence operations or scientific or technological developments vital to the national defense.”
Judge Gesell has used that as the standard. He made no reference whatever to the succeeding classification, which is Secret, and there is also a classification which is Confidential. But Judge Gesell has used as the basis of his decision, and I suggest this was fundamental error, that there is no proof—this is on Page 269 of the transcript of the hearing before Judge Gesell—there is no proof that there will be an armed attack on the United States, that there will be an armed attack on an ally, that there will be a war, that there will be a compromise of military or defense plans—in my closed brief I contend that he was wrong on that—a compromise of intelligence operations, and in my closed brief I contend that he was plainly wrong on that, or a compromise of scientific and technological materials.
If the standard is that we cannot prevent the publication of improperly acquired material unless we can show in substance an effect, because that is what he really meant, that there will be a break in diplomatic relations or that there will be an armed attack on the United States, I suggest that the standard which Judge Gesell used is far too narrow. Perhaps it lies in between. My own thought would be that in the present parlous state of the world, considering negotiations in the Middle East, considering the SALT talks now going on—it is perhaps not inappropriate to remember that SALT is Strategic Arms Limitations Talks, the consequences of which obviously have in all likelihood not the prevention of a nuclear attack tomorrow, maybe not next week, but only by success in this kind of negotiations can we have any hope that our children and our children’s children will have a world to live in.
I suggest that when it is found by the District Court that the publication of the documents in the large may interfere with, the ability of the Department of State in the conduct of delicate negotiations now in process or contemplated for the future, that should be enough by itself to warrant restraint on the publication of the now quite narrowly selected group of materials covered in the special appendix and dealt with in some detail in my closed brief, and the related papers which have been filed with the court this morning.
Justice Harlan:
Q. Could I ask you a question before you sit down? I had understood from your papers and the brief that you filed this morning that the only specific relief at this stage, this juncture of the proceedings you are asking for is (A) that the Court of Appeals decision in The Times case should be affirmed, namely, that the further hearing before the District Court ordered by the Court of Appeals should go forward to a conclusion, and as regards The Washington Post case, that you are asking only that the proceedings thereby conformed to the proceedings in the Court of Appeals in the Second Circuit, and that therefore these broader questions that you have been talking about are not before the court at the moment, in your judgment.
A. No, Mr. Justice, I think I cannot agree with that. It is our position that Judge Gesell used the wrong standard, as I have just said, and it is our view that the judgment of the Second Circuit should be affirmed, and the case remanded to Judge Gurfein for further hearing under a proper standard which I hope this court will develop and announce, and that the decision of the Court of Appeals would be reversed and the case remanded to Judge Gesell for further hearing and the application of the proper standard which this court has decided, because it is our view, as I have endeavored to contend, that in rational terms in the modern world, the standard that Judge Gesell applied is just too narrow, and as I have said, the standard should be great and irreparable harm to the security of the United States. In the whole diplomatic area, the things don’t happen at 8:15 tomorrow morning. It may be weeks or months, people tell me that already channels of communication on which great hope had been placed have dried up. I haven’t the slightest doubt myself that the material which has
already been published and the publication of the other material affects American lives and is a thoroughly serious matter. I think to say that it can only be enjoined if there will be a war tomorrow morning, when there is a war now going on, is much too narrow.
Mr. Chief Justice Burger:
Thank you, Mr. Solicitor General, Mr. Bickel.
Oral Argument by Alexander M. Bickel, Esq., on Behalf of Petitioner (The New York Times)
Mr. Bickel:
Mr. Chief Justice, may it please the court, we began publishing on June 13. We published on the 14th and the 15th, with no move from the Government until the evening of the 14th, despite what is now said to be the gravest kind of danger which one would have supposed would have been more obvious than it turned out to be.
Chief Justice Burger:
Mr. Bickel, aren’t you going to allow some time for somebody to really see what this means before they act and some pleadings drawn, and get lawyers into the courts?
A. I plan to return briefly to this point. I point out now only that as was evident to us at the hearings when we cross-examined some of the Government witnesses, high-ranking people in the Government quite evidently read these things on Sunday morning, the following day, and no great alarm sounded.
We were then enjoined, under prior restraint, on the 15th, and we have been under injunction ever since. This is the 11th day, I guess, under the order of the Court of Appeals for the Second Circuit. We would remain under injunction presumably until the 3d of July, with the distinct possibility of more time added after that if appellate proceedings are required.
Now a word simply on what was had before the hearing that was held before Judge Gurfein. It took place on Friday last, I believe. It started first thing in the morning with open hearings. We went in camera, as Mr. Seymour said, for something upward of four hours. I do not know the exact time. The record will clearly show that the judge’s sole purpose, in camera, and continuously expressed intent was to provoke from the Government witnesses something specific, to achieve from them the degree of guidance that he felt he needed in order to penetrate this enormous record.
It is our judgment, and it was his, that he got very little, perhaps almost nothing. The point, however, that I want to leave with you is that at no time in the course of these hearings did the Government object to their, what is now called the speed or rapidity of them; at no point was more time asked for. Of course, we all labored, as I think is only proper under the knowledge that a great newspaper was being restrained from publishing, and that expedition was desirable. But there is no evidence that I know of that Judge Gurfein rushed the proceedings, or would have rushed them, if the Government had asked for more time. I think the Government gave Judge Gurfein all it had.
Now the Government based its complaint against us, framed in very general terms, on a statute, first, one section of it and finally section 793 (E) of the statute. We have a substantial portion of our brief that is still devoted to arguing that the statute is inapplicable. Judge Gurfein so held it to be, and I take it that the order of the Court of Appeals for the Second Circuit is at least open to the interpretation that that holding of Judge Gurfein’s is, if not affirmed, at any rate, accepted.
If I may, at this point, take up Mr. Justice Stewart’s question to the Solicitor General, referring to our position, we concede, and we have all along in this case conceded for purposes of the argument, that the prohibition against prior restraint, like so much else in the Constitution, is not an absolute. But beyond that, Mr. Justice, our position is a little more complicated than that, nor do we really think that the case, even with the statute out of it, is a simple—presents indeed a simple question of fact. Rather, our position is twofold. First, on principles, as we view them, of the separation of powers, which we believe deny the existence of inherent Presidential authority on which an injunction can be based.
First on those, and secondly, on First Amendment principles, which are interconnected, and which involve the question of a standard before one reaches the facts, a standard on which we differ greatly from the Solicitor General. On both these grounds, we believe that the only proper resolution of the case is a dismissal of the complaint.
Q. What was the first ground?
A. The first ground, which I am about to enter upon, is the question of the separation of powers, with the statute out of this case.
Q. Yes?
A. As I conceive it, Mr. Justice, the only basis on which the injunction can issue is a theory, which I take it the Solicitor General holds, of an inherent Presidential power.
Now an inherent—
Q. Based upon—
A. His constitutional—
Q. —The power of the executive in the area of international relationships and in the area of the defense of the nation? A. I so assume.
Q. Under the Constitution of the United States?
A. I so assume. The reason for that being that a court has to find its law somewhere. As Holmes would have said, I suppose, some legislative “will” must be present from which the court draws the law that it then applies, and that legislative will has to be the President’s, if there is no statute.
I do not for a moment argue that the President does not have full inherent power to establish a system of classification, that he does not have the fullest inherent power to administer that system and its procedures within the executive branch. He has his means of guarding security at the source. In some measure he is aided by the criminal sanction. But in any event, he has full inherent power, and the scope of judicial review of the exercise of that power will presumably vary with the case in which it comes up, but I am prepared to concede the decision in the Epstein case, for example, which is cited, I think, in both briefs, that under the Freedom of Information Act, the scope of review is limited, limited to examining whether it is proper.
Nor are we arguing that the President does not have standing—in the sense in which Baker and Carr distinguishes between standing and just his ability—standing to come into court, which is I think the burden of most of the cases that the Government cites. The question that I do argue is whether there is inherent Presidential power to make substantive law, not for the internal management of the Government, but outgoing, outlooking substantive law, which can form the basis for a judicially issued injunction, imposing a prior restraint on speech.
The decisive issue that ties in this point and our ultimate First Amendment point is, of course, the exception carved out by Chief Justice Hughes in Near v. Minnesota, for that narrow area in which he accepted that a prior restraint on speech might be applied. This is an exception that is made to a rule more solidly entrenched in the First Amendment than any other aspect of it, a rule that is deeply part of the formative experience out of which the First Amendment came, a rule against prior restraint, based on the experience that prior restraints fall on speech with a special brutality and finality and procedural ease all their own, which distinguishes them from other regulations of speech. If the criminal statute “chills” speech, prior restraint “freezes” it.
It is within that well established doctrine that the exception arises. As Chief Justice Hughes formulated it, it referred to—actually, it said—we would all assume that a prior restraint might be possible, to prevent actual obstruction of the recruiting service, and this is the Chief Justice’s language, or the publication of sailing dates of transports, or the number and location of troops. I suppose that under the present law, the “recruiting service” part of that exception is problematic, but on the sailing dates of ships and the location of troops, there is a very specific statute. It is 18 U.S.C. 794, which has not been cited against us, which is inapplicable, which is why it has not been cited against us, because that is not what we report. That is not in our paper.
That being the case, there is no applicable statute under which we are covered. The question arises, as a matter of inherent Presidential authority, what kind of feared event would give rise to an independent power on the par
t of the President? It is a question, in a sense, that was saved in Hiribayashi v. the United States, the first of the Japanese exclusion cases. It is a question which, in its own context, of course, Youngstown Sheet and Tube Co. v. Sawyer answered in the negative.
My suggestion would be that whatever that case, that extremity, that absolute other extremity in which action for the public safety is required, whatever that case may be in which, under this Constitution, under its rules of separation of powers, when the President has independent, inherent authority to act domestically against citizens, let alone to impose a prior restraint, whatever that case may be, it cannot be this case. Whatever that case may be, it surely is of a magnitude and of an obviousness that would leap to the eye, and that is why, in part, Mr. Chief Justice, I mentioned at the beginning, the period of time that has passed. I would suppose that, stretching our imaginations, and trying to envisage that case, the one characteristic of it suggested by the example that Chief Justice Hughes recited, suggested by the phrase that the Second Circuit used, which is probably why the Solicitor General resists the word “immediate,” the single characteristic that we can immediately see of such an imagined event would be that it is obvious that the public safety is an issue, that time is of the essence. I submit that that cannot be this case. It cannot be that it has to take the Government which has been reviewing these documents for many months, not just in connection with this case, but in reply to an inquiry made by Senator Fulbright, as the record of our hearings in New York shows, it cannot be that a Government, consisting, after all, of more than just the five witnesses we heard in New York, or the ones that were heard here, over this length of time, has an unfamiliarity with these documents, substantial as they might be, which is so great that, when news of their publication comes up, nobody in the Government knows that somewhere in those documents is one which presents a mortal danger to the security of the United States.