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Pentagon Papers

Page 95

by Neil Sheehan


  A. Clearly.

  Q. By any document?

  A. By anything the Government has brought forward.

  Q. By any document in these papers, on the specified list?

  A. Your Honor, the Government came into court. They suspended the First Amendment; they stopped us from printing, and they said they were going to prove this. This is an injunction proceeding. Now it may be that the Government would see that the courts should become the Defense Department’s security officer, and that the courts should delve into this pile of paper, 47 volumes, on its own, from time to time. Whenever the Government is so moved, that the courts should work for them. I say, Your Honor, in our system, as I understand it, when you bring a case, you are supposed to prove it, and when you come in claiming irreparable injury, particularly in this area of the First Amendment, you have a very, very heavy burden.

  Q. Do you agree that Judge Gesell applied the Top Secret definitions as his guide?

  A. Yes, I think that would appear so.

  Q. That is the way he measured the case?

  A. He looked at it that way, from his opinion. Yes, Your Honor, as far as I can determine.

  Q. Would you accept that standard?

  A. Yes, I think that fits in clearly to what we are talking about under the doctrine of Near vs. Minnesota. Yes, sir.

  Q. If the trial judge uses clearly erroneous standards, then the case is not simply controlled by facts, is it?

  A. I am sorry?

  Q. If a trial judge, in these circumstances, used a standard to judge the facts, and the standard was clearly erroneous, then this is not just a fact case, is it?

  A. I think, as I understand it, the “clearly erroneous” rule would apply to the facts, what facts he found.

  Q. But if he used the wrong standards, then it ceases to be just a fact case?

  A. I feel that he used the right standard. Your Honors will determine that here, and I think that as far as the law is concerned, that that is substantially the standard. You can, perhaps, use alternative words, but the thing is, I think, is immediacy and currency, current injury to the United States, as this Court—has been so substantial, that it justifies what has been done here. It is not just that the United States has been injured. Judge Gesell made a point, which I think is a very good one, that I think perhaps the Government may forget that the interests of the United States are the people’s interests. You are weighing here, and this is why I suppose we are here, but you are weighing here an abridgement of the First Amendment, the people’s right to know. That may be an abstraction, but it is one that has made this country great for some 200 years. You are being asked to approve something that the Government has never done before. We were told by the Attorney General to stop publishing this news. We did not obey that order, and we were brought into court. We ended up being enjoined.

  I do think that when you come to that balance, in face of the proof that exists here, that the decision is quite clear that the First Amendment must survive, because they have not made a case.

  Q. Do you think that Judge Gurfein and Judge Gesell used the same standard of review?

  A. I think essentially they did, Mr. Justice.

  Q. They did not consider it a matter of review, did they? They considered it a matter of their original findings.

  A. Yes.

  Q. They were not reviewing any classification?

  A. No, they were not reviewing. They were making an original determination. Under the circumstances and the proof before them, it was not the kind of irreparable injury—

  Q. It was a de novo hearing on whether or not the publication would—

  A. Yes.

  Q. It was not reviewing any classification by the executive department was it? They did not consider that that was what they were doing?

  A. No, that is featured in the evidence, Your Honor, as to how the classification got put on there. That, of course, is—

  Q. That is basically irrelevant, is it not?

  A. No. Because the Government says, and you must listen, they say, it is top secret, and that is it.

  Q. No, I have not heard the Solicitor General say that here today at all.

  A. That is my understanding of their whole—

  Justice Stewart:

  I asked him that question, and he said that there were those in the Government who would like that argument, but he was not pressing it.

  A. Well, it is the argument that we have heard along. You see, having classified it Top Secret, they move from there to show no proof.

  Q. No, the Government has not, in this court, made the argument that simply because it is Top Secret, they are entitled to an injunction. They have not made that argument.

  A. I was trying to say that, having classified the document Top Secret, that is the premise of their case. They have not yet come into this court and proven they are Top Secret, and yet they say that we cannot publish them because they are Top Secret.

  Justice Stewart:

  I have not heard that argument made, with all respect.

  Justice Black:

  As I understand the argument of both of the lawyers, it seems to me that they have argued it on the premise that the First Amendment, freedom of speech, can be abridged by Congress if it desires to do so.

  A. I did not make that argument.

  Justice Black: I understood you to. I did not understand you to make any other argument, or your colleague. You were talking about standards. I am not talking about standards. Under the First Amendment, Congress shall make no law abridging freedom of the press. I understand you to say that Congress can make a law.

  A. No, Your Honor, I do not say that.

  Justice Black: You do not say that?

  A. Never. I do not say that. No, Sir. I am sorry, Your Honor. I say that we stand squarely and exclusively on the First Amendment.

  Q. Thank you, Mr. Glendon.

  Chief Justice Burger: Mr. Solicitor General, you have about 12 minutes or thereabouts left.

  Oral Argument in Rebuttal by the Solicitor General

  The Solicitor General: Mr. Chief Justice, and may it please the court, I should like to make it plain that we are not at all concerned with past events in this case. We are not interested in protecting anybody. That should be obvious enough simply from the date of the materials which are involved. We are concerned with the present and future impact of the publication of some of this material. When I say “future,” I do not mean in the 21st century, but I also do not mean to limit it to tomorrow, because in this area, events of great consequence to the United States happen over periods of six months, a year, perhaps two or three years.

  What we are concerned with is the impact on the present and the reasonably near future of the publication of these materials.

  Now it is perfectly true that prior restraint cases with respect to the press are rare, or conceivably nonexistent. I am not ready to concede that they are nonexistent, but I cannot point to one now. I have not had time to make a really thorough research. I did point out that there are prior restraint cases as recently as last term, with respect to freedom of speech, which is the First Amendment in exactly the same terms as the freedom of the press.

  There is the Associated Press case, which comes about as close to being a prior restraint on the press case as you can get without perhaps being technically a prior restraint. The reason, of course, that there are not prior restraint cases with respect to the press is that ordinarily, you do not find out about it until it has been published.

  Reference has been made to the fact that, oh, there are leaks all the time. There are a great many leaks, but I would point out that there is also a very wide respect of the security classification system and its potentiality on the security of the United States. Senator Fulbright did not publish this material. He requested of the Secretary of Defense what use he could make of it, and I have seen on the television other members of Congress who said that they had some of the material but felt it not appropriate to use it, becaus
e it was classified top secret.

  Justice Marshall:

  Q. Mr. Solicitor General, what particularly worries me at this point is that I assume that if there are studies not now being made, in the future there will be studies made about Cambodia, Laos, you name it. If you prevail in this case, then in any instance that anybody comes by any of those studies, a temporary restraining order will automatically be issued. Am I correct?

  A. It is hard for me to answer the question in such broad terms. I think if properly classified materials are improperly acquired, and that it can be shown that they do have an immediate or current impact on the security of the United States, that there ought to be an injunction.

  I think it is relevant, at this point—

  Justice Marshall:

  Wouldn’t we then—the Federal courts—be a censorship board, as to whether this does—

  A. That is a pejorative way to put it, Mr. Justice. I do not know what the alternative is.

  Justice Marshall:

  The First Amendment might be.

  A. Yes, Mr. Justice, and we are, of course, fully supporting the First Amendment. We do not claim or suggest any exception to the First Amendment. We do not agree with Mr. Glendon when he says that we have set aside the First Amendment, or that Judge Gesell or the two courts of appeal in this case, have set aside the First Amendment by issuing the injunction, which they have. The problem in this case is the construction of the First Amendment.

  [To Justice Black] Now Mr. Justice, your construction of that is well known, and I certainly respect it. You say that “no law” means “no law,” and that should be obvious. I can only say, Mr. Justice, that to me it is equally obvious that “no law” does not mean “no law,” and I would seek to persuade the Court that that is true.

  As Chief Justice Marshall said, so long ago, it is a Constitution we are interpreting, and all we ask for here is the construction of the Constitution, in the light of the fact that it is a part of the Constitution, and there are other parts of the Constitution that grant powers and responsibilities to the executive, and that the First Amendment was not intended to make it impossible for the executive to function or to protect the security of the United States.

  It has been suggested that the Government moved very slowly in this matter. The Times started publishing on Sunday. Well, actually, it was on Monday, which is pretty fast as the Government operates, in terms of the consultations that have to be made, the policy decisions that have to be made. On Monday, the Attorney General sent a telegram to The New York Times, asking them to stop and to return the documents. The New York Times refused. On Tuesday, the United States started this suit.

  It suggested that there have been full hearings, everything has been carefully and thoroughly considered, but there is clear evidence of haste in both records. This is apparent from the times which have been stated, and I would like to point out that even now, at this point, the hearing is on the question whether a preliminary injunction should be granted. The only hearings that have been held in any courts are to whether a preliminary injunction should be granted. They were not intended to be full, plenary trials, but merely sufficient to show the probability of possible success. There simply was not time to prepare a comprehensive listing or a comprehensive array of expert witnesses. The Government relied on the fact that the district judge would examine the study, and on the record, he concededly refused to do so. This was at the heart of the decision of the Court of Appeals for the Second Circuit, in its decision to remand for a full week of hearings on the merits.

  Q. I am not sure that I understand what you said. The Court of Appeals relied on the assumption that the district judge would examine the evidence, and the district judge refused to do so?

  A. No. That there had not been a full hearing with respect to this.

  Q. Which case are we talking about now?

  A. I am talking about The New York Times case in the Second Circuit. The Second Circuit sent it back to the judge for a hearing—

  Justice Stewart:

  As I understood it, there was no claim that Judge Gurfein did not consider everything that was then before him, but that new matter was brought to the attention of the Court of Appeals for the Second Circuit?

  A. On the contrary, Mr. Justice, the full 47 volumes were offered to Judge Gurfein, and he refused to examine them.

  Justice Stewart:

  He did not. He did not refuse to, he failed to.

  A. No, Mr. Justice, he said that he would not examine them.

  Justice Stewart:

  He said that he did not have time to, but he did ask the Government to please bring forward the worst.

  A. No. I think that really came at a later stage.

  Justice Stewart:

  Then a new matter was brought to the attention of the Second Circuit—

  A. Brought to the attention of the Second Circuit Court of Appeals, and they sent it back not for an instant hearing, but for one limited, and properly so.

  Everything about this case has been frantic. That seems to me to be most unfortunate. I would like to point out that The New York Times—

  Justice Stewart:

  No. The reason is, of course, as you know, Mr. Solicitor General, that unless the Constitutional law, as it now exists, is changed, a prior restraint of publication by a newspaper is presumptively unconstitutional.

  A. It is a very serious matter. There is no doubt about it, and so is the security of the United States a very serious matter. We have two important Constitutional objectives here which have to be weighted and balanced and made as harmonious as they can be. But it is well known that The Times had this material for three months. It is only after The Times has had an opportunity to digest it, and it took them three months to digest it, that it suddenly becomes necessary to be frantic about it. It was not so terribly important to get it out and get it to the public while The Times was working over it, but after that now The Times finds it extremely difficult to accept an opportunity for the courts to have an adequate chance first to resolve the extremely difficult question of the proper construction of the First Amendment in this situation, and I concede that is an extremely difficult question. If the proper construction is the one which Mr. Justice Black has taken for a long time and is well known, of course, there is nothing more to be said. But our contention is that that is not the proper construction.

  Justice Stewart:

  And the counsel on the other side do not disagree with you, Mr. Solicitor General. They do not take Mr. Justice Black’s position, at least for purposes of argument in this case.

  A. Very reluctantly they were pushed into conceding that there might be some cases where there could be those suggested—

  Q. Mr. Glendon said that he thought Judge Gesell’s standard was the correct one. Mr. Bickel said that he was making no claim that there is an absolute prohibition of a prior restraint.

  A. Frankly, I do not think it is much of a limitation to say that it can be enjoined if it will result in a break of diplomatic relations or a war tomorrow. As I have already said, we think the standard used by Judge Gesell is wrong.

  Q. Do you think they differ from the standards of Judge Gurfein?

  A. I am sorry?

  Q. I said, do you think that the standards that Judge Gesell used were different from those which Judge Gurfein used?

  A. I am not sure what standard Judge Gurfein used, because much of this material Judge Gurfein did not have specifically called to his attention. The standard which Judge Gesell used is to say that unless it comes within that illustrative language, and the definition of top secret, that it does not meet the requirement, and that is wrong. I believe, and have sought to show in the closed brief which is filed here, that there are materials, or there are items in this material which will affect the problem of the termination of the war in Vietnam, which will affect negotiations such as the SALT talks, which affect the security of the United States vitally over a long period, and which will affect the prob
lem of the return of prisoners of war. I suggest that however it is formulated, the standard ought to be one which will make it possible to prevent the publication of materials which will have those consequences.

  Q. I still am not clear as to the basis for your view that the case, the District of Columbia case, should be remanded. I got it originally, from your papers, that you thought that it should be remanded in order to have the fuller hearing that the court of appeals may have been lacking before Judge Gurfein. This morning you said that you thought it should be remanded because the standard used by Judge Gesell was erroneous.

  A. Essentially, in the Court of Appeals, there has been a hearing, though it lasted only one long day. However, our basic claim there would be that it ought to be remanded for hearing, and I would be content to have it for hearing on this record, but for determination on the right standard. In the Second Circuit case, from Judge Gurfein, there has not yet been the kind of hearing that we think there ought to be. We think there ought to be such a hearing, and that Judge Gurfein should have the benefit of this Court’s views as to what the proper standard is, in coming to his conclusion, as a result of that hearing.

  Q. I understand, also, that you do claim that there are materials in this record which do satisfy those categories of top secret?

  A. Yes, Mr. Justice. I do not think that is essential, but I think there are some.

  Q. I know, but if Judge Gesell used those standards, the top secret standard, for judgment, he was wrong in saying that none of the material—

  A. Yes, Mr. Justice, because there is reference in there, among other things, to communications, and I think that is established in this record.

  Chief Justice Burger:

  Thank you, Mr. Solicitor General. The case is submitted.

  SUPREME COURT OF THE UNITED STATES No. 1873 and No. 1885

  Decision

  June 30, 1971

  PER CURIAM.

 

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