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>> Warren E. Burger: Mr. Solicitor General, the Governments motion to conduct part of
the oral arguments involving security matters in-camera, as has been done in the District
Courts of New York and in Washington and in the Courts of Appeals, in the Second Circuit
and the District of Columbia Circuit is denied for the Court.
Mr. Justice Harlan, Mr. Justice Blackmun and I would grant a limited in-camera argument
as has been done in all the hearings in these cases until now.
Under the order, granting the writ yesterday, counsel may, if they wish, submit arguments
in writing under seal in lieu of the in-camera oral argument.
Mr. Solicitor General you may proceed. >> Griswold: Mr. Chief Justice, may I say
in respect of the announcement just made that all three parties have filed a closed brief
as well as the open brief and in addition, I have filed just within minutes, two statements,
one prepared by the state department and one prepared by the department of defense, giving
more detail about some of the items which are discussed in my closed brief and I believe
that those will all be before the Court. >> Warren E. Burger: Are you suggesting that
these matters last filed are security matters or they merely supplement and explain --
>> Griswold: The only ones that are security matters that I have filed are all marked top
secret. >> Warren E. Burger: I see, thank you very
much. I just wanted to be sure as to these last
documents. >> Griswold: The items filed by the Post and
the Times, I do not believe are marked top secret, but they are marked in-camera in the
caption of the items. I repeat, all three have also filed regular
briefs except not printed, only the American Civil Liberties Union seem to have the resources
to produce a printed brief for this case. I am told that the law students of today are
indignantly opposed to final examinations because they say that no lawyer has asked
to work under such pressure that he as to get things out in three or four hours.
I can only say that I think its perhaps fortunate that Mr. Glendon and Mr. Bickel and I went
to law school under earlier dispensation. It is important I think to get this case in
perspective. The case of course raises important and difficult
problems about the constitutional right of free speech and of the free press and weve
heard much about that from the press in the last two weeks.
But it also raises important questions of the equally fundamental and important right
of the government to function. Great emphasis has been put on the First Amendment
and rightly so. But there is also involved here a fundamental
question of separation of powers in the sense of the power and authority which the Constitution
allocates to the President as Chief Executive and as Commander-in-Chief of the army and
navy and involved in that, there is also the question of the integrity of the institution
of the presidency whether that institution, one of the three great powers under the separation
of powers, can function effectively. The problem lies on a wide spectrum and like
all questions of constitutional law, involves the resolution of competing principles.
In the first place it seems to me that it will be helpful to make some preliminary observations.
If we start out with the assumption that never under any circumstances can the press be subjected
to prior restraints, never under any circumstances can the press be enjoined from publications,
of course, we come out with the conclusion that there can be no injunction here.
But I suggest, not as necessarily conclusive in this case, but I suggest that there is
no such constitutional rule and never has been such a constitutional rule.
We have for example the copyright laws and my son was in trial earlier this week and
he sent me copies of the Globe & Mail of Toronto, ten series of the story that Pentagon is trying
to kill, each one added copyright New York Times service.
I have no objection to that, but I -- these stories which had then published have been
copyrighted by the New York Times and I believe by the portion imposed and I have no doubt
that perhaps in other cases because these have already attracted much attention, the
New York Times and the Washington Post would seek to enforce their copyright.
I suppose it is very likely that in one form or another, they have obtained royalties because
of their copyright on this matter, but let us also consider other fields of the law.
There is a well known branch of the law that goes under the heading of Literary Property.
In the Court of Appeals, I gave the example of a manuscript written by Earnest Hemingway,
lets assume while he is still living, unpublished, perhaps incomplete, subject to revision.
In some way the press gets hold of it. Perhaps its stolen, perhaps its bought from
a secretary through breech of fiduciary responsibility or perhaps its filed on the segue and if the
New York Times sought to print that, I have no doubt that Mr. Hemingway or now his heirs
next to kin, could obtain from the Courts an injunction against the press printing.
Only this morning, I see in the paper that a New York Publisher is bringing a suit against
Newsday, a New York news paper because Newsday has violated what the New York publisher consists
says considers to be its copyright in the forthcoming memoirs of President Johnson.
And then finally or not finally, but next, we have a whole series of law, a traditional
branch of equity, involving participation and the breech of trust and there cannot be
the slightest doubt, it seems to me, that no matter what the motive, no matter what
the justification that both the New York Times and the Washington post are here consciously,
intentionally participating in a breech of trust.
They know that this material is not theirs, they do not own it.
Im not talking about the pieces of paper of which they may have acquired by the literary
property and again I say I dont regard this as controlling or conclusive in this case.
Im simply trying to advance the proposition that there are many factors and many facets
here and that there is no constitutional rule that there can never be prior restraints on
the press or on free speech. Now in our main brief in this case, we have
which I may say was largely prepared by my associate Mr. Friedman, last evening and last
night. We have cited one case which comes very close
to being a injunction by this Court against publications in the press and that is the
Associated Press case in I believe 215 United States.
The Associated Press is a cooperative of newspapers and there, the Associated Press sought and
obtained an injunction against the dissemination of news by its competitor United or International
Press in that case not United by its competitor International and that was granted on copyright
and related grounds. But we have other areas in the law where this
Court has approved against specific First Amendment claims, injunctions in advance forbidding
speech. One area of this is the labor law field where
as recently is 395 U.S. in Sinclair against the National Labor Relations Board, the Court
unanimously affirmed the judgment of the Court of Appeals, enforcing the Board's order which
included a provision requiring Sinclair to cease and desist from the threatening the
employees with the possible closing of the plant or the transfer of the weaving production
with the attendant loss of employment or with any other economic reprisals, if they were
to select the above named or any other labor organization.
In 393 U.S, a case involving the Federal Trade Commission, Federal Trade Commission against
the Tex -- against Texaco Inc., involving orders with respect to TBA, tires, battery
and accessories, the Court approved the order of the Federal Trade Commission which restrained
Texaco from using or attempting to use any device such as, but not limited to, dealer
discussions, they were ordered not to speak to dealers about this subject and the First
Amendment was specifically referred to in the brief for the respondent and was not mentioned
in this Courts opinion. >> Potter Stewart: Mr. Solicitor General,
of course, as the Times Film case as well and there are no doubt others.
I didnt understand, however, that your brother counsel on the other side really questioned
any of this. I thought that at least for purposes of this
case, they conceded that an injunction would be not violative of the First Amendment or
put it this way that despite the First Amendment, an injunction would be permissible, in this
case if the disclosure of this material would in fact oppose a grave and immediate danger
to the security of United States, that is that for purposes of this case, theyve concede
that, but they have said that in fact the disclosure of this material would not pose
any such grave and immediate danger. (Voice Overlap)
>> Griswold: Mr. Justice if they have conceded it, I am glad to proceed on that basis.
>> Potter Stewart: No I am not conceding it for them, but that had been my understanding
of what the issue is. They'll make it clear of course to --
>> Griswold: I may say that their brief were served on me within the last 15 minutes which
-- the last hour which was entirely in accordance with this Courts order, but I have not seen
their briefs. I do not know what is in their briefs.
>> Potter Stewart: In other words, I have thought in my analysis and I haven't had the
benefit of much more time than you had, that this basically came down to a fact case that
the issues here are factual issues? >> Griswold: And that Mr. Justice is extremely
difficult to discuss -- >> Potter Stewart: Argue here in this Court,
I understand. >> Griswold: --in open court and we have endeavored
to -- >> John M. Harlan: Is then to say qualifying
and acceptance of the scope of the initial review of the executive determination (Inaudible)
>> Byron R. White: And that is the throughout the standard --
>> Griswold: Mr. Justice White, it was the latter point for which I was seeking to get
this because our contention, particularly with respect to the Washington Post case is
that the wrong standard has been used. Now with respect to the actual factual situations,
the only thing that I can do is to point to the closed brief, which I have filed in which
there are ten specific items referred to. Now when I say specific items, I must be -- I
must make myself very clear. Some of those are collective.
There are -- I have brought here, you perhaps cant see them, the 47 volumes that are supposed
to be the background of this, they are included in the record of the Second Circuit Court
of Appeals which has been filed with the Court. Let me say when we move on to this next item
that it was inevitable that I delegate the question of preparing the supplemental statement
which was covered by this Courts order yesterday. This Court, as did the Second Circuit, referred
to the material specified in the special appendix in the Second Circuit and to such additional
items as might be included on a supplemental statement filed at 5:00 pm yesterday.
I had nothing to do with preparing that supplemental statement.
I have able and conscientious associates who did work on it.
However, when I had a chance to see it last evening, particularly after the state department
called me at 8:00 or 9:00 at night and said they had four additional items, and I said
that the Courts deadline was 5:00 pm and that I could not add any additional items.
I then examined it. Here is a copy and I find it much too broad.
In particular, it has at the end a statement, in view of the uncertainties as to the prcised
documents in defendants custody and I say that is a -- has been an extreme difficulty
in this matter. we dont know now, never have know what the
papers have. >> Potter Stewart: I thought the New York
Times was required too and did give you a list of --
>> Griswold: They prepared an inventory but from it, it is not possible to tell whether
they are the same papers that we have. Part of the problem here is that a great mass
of this material is not included in the 47 volumes.
It is a background material, earlier drafts of some papers which are materially different
than what is included in the 47 volumes and as a result, we cannot tell from the inventory
what is included. For example, one of the items already published
which has caused a certain amount of controversy, publicly and internationally, is a telegram
to the Canadian Government, that is not in the 47 volumes and is not referred to in the
47 volumes. Where they got it, how they got it, what it
is, I do not know. But in this supplemental memorandum, it is
stated under my signature that the petitioner specifies an addition to the foregoing any
information relating to the following and then there are listed 13 items and frankly
I regard that as much too broad. And therefore, I am saying here that we rely
with respect to this factual question only on the items specified in the supplemental
appendix, filed in the Second Circuit and on such additional items as are covered in
my closed brief in this case. Those additional items --
>> Byron R. White: Mr. Solicitor, your closed brief cover all of the items on a special
appendix and any that you think should be added to it?
>> Griswold: No Mr. Justice, it does not refer to all of them.
What I tried to do in my closed brief was I spent all yesterday afternoon in constant
successive conversation with the individuals from the State Department, the Defense Department,
the National Security Agency and I said look, tell me what are the words, tell me what are
the things that really make trouble. And they told me and I made long-hand notes
of what they told me and from that I prepared the closed brief.
>> Byron R. White: Well Mr. Solicitor General, if we disagreed with you on those that you
have covered, the remainder of the items need to be looked at?
>> Griswold: Mr. Justice, I think that the odds are strong that that is an accurate statement.
I must say that I have not examined everyone of the items.
>> Byron R. White: Are you making an argument that even if those ten that you have covered
dont move us very far that nevertheless the cumulative impact of all the others might
tip the scale? >> Griswold: And that there ought to be an
opportunity for a full and free judicial consideration of each of the items covered in the supplemental
appendix. Now, it's perfectly true that there was a
trial before Judge Gesell in the District Court of the United States.
I referred to it in my closed brief as hastily conducted and I have said that I -- there
was no trace of criticism in that. Judge Gesell started the trial at 8:00 last
Monday morning and was under order from the Court of Appeals to have a decision made by
5:00 pm and there are 47 volumes of material and millions of words and there are people
in various agency to the Government who have to be consulted and Mr. Glendon quite appropriately
conducted cross examination which took time and much of the material had to be presented
by affidavits and there simply has not been a full careful consideration of this material.
To the best of my knowledge based on what was told to me yesterday afternoon by the
concerned persons, the ten items in my supplemental -- in my closed brief are the ones on which
we most rely but I have not seen a great many of the other items in the special appendix
simply for sheer lack of time. >> John M. Harlan: What was the length of
the trial before Judge signed in the argument? >> Warren E. Burger: Mr. Seymour --
>> Seymour: The in-camera proceedings Your Honor were approximately four hours, including
cross examination and argument. >> John M. Harlan: What was the length of
the hearing in the Court of Appeals for the Second Circuit?
>> Seymour: The camera argument, the total argument there public and in-camera was just
over 3 hours, in-camera portion I would guess was about an hour.
>> John M. Harlan: And decisions were rendered in the New York case by the District Court
within two days after which -- >> Seymour: Then less than 24 hours after,
Your Honor, the hearing finally finished at 10:45 pm on Friday night.
The decision was rendered on 2:25 Saturday afternoon.
>> John M. Harlan: And what was the time in rendering of the decision of the Court of
Appeals? >> Seymour: I believe it went one full day,
Your Honor. That is the decision was rendered late in
the day of the 23, argument was finished about 5:00, shortly after 5:00 on 27.
>> Potter Stewart: And the District of Columbia proceedings, of course, you dont know, but
perhaps the Solicitor General -- >> Griswold: The trial in the District of
Columbia occurred between 8:00 am and 5:00 pm, including the decision last Monday.
I participated in the oral argument in the Court of Appeals and it occupied two hours
and a half, two hours and forty-five minutes. Started at about 2:15 and was over I think
just before 5:00 that is the entire amount of judicial time which has been devoted to
million of words. >> Potter Stewart: Mr. Solicitor, I dont want
to bring in a red herring in this case or which might be, but do you also say that the
ten items you have talked about fully justify the classification that has been given them
and it still remains on them? >> Griswold: Mr. Justice, Im not sure whether
this case turns on classification. >> Byron R. White: I agree, no body does it
but -- >> Griswold: No judicial proceeding has been
brought under the freedom of information act by either newspaper.
There is provision there for citing a proceeding in Court in case materials are wrongly determined.
No judicial determination has been made that any classification was arbitrary or capricious.
There is a complication here which people who lived with this become familiar with,
which is that is any compilation takes the classification of the highest classified item.
>> Byron R. White: I understand that but on those ten documents, I wont press you anymore,
you think its perhaps needed to be answered in this case and is perhaps irrelevant.
>> Griswold: I think it need not be answered, but my position would be that as to those
10 items, its more than 10 documents as to those 10 items that they are properly classified
top secret. >> Potter Stewart: Thank you.
>> Griswold: One of the items, I should make plain is four volumes of the 47 volumes, four
related volumes, all dealing with one specific subject.
The broaching of which to the entire world at this time would be of extraordinary seriousness
to the security of the United States and as I say that is covered in my closed brief and
Im not free to say more about it. >> Potter Stewart: As I understand it Mr.
Solicitor General and you tell me please, if I misunderstand it, your case doesnt really
depend upon the classification of this material, whether its classified or how its classified.
In other words if the New York Times and the Washington Post had this material as a result
of the indiscretion or irresponsibility of an under secretary of defense who took it
upon himself to declassify all of this material and turn it over and give it to the papers,
you would still be here? >> Griswold: I would still be here, but would
have one string off my book. >> Potter Stewart: Well, I didnt understand
it was a real string and that's why I am asking the question.
>> Griswold: Well, it maybe this, but there are those who think it is and I must be careful
not to concede away in this Court grounds with some responsible officers of the Government,
I think how important, but I do understand --
>> Potter Stewart: Secondly I understand and tell me if Im wrong again that your case really
doesnt depend upon any assertion of property rights by analogy to the copyright law. You
are not -- your case would be the same if the New York Times that acquired this information
by sending one of its employees in to steal it as it would if it had been presented to
the New York Times on a silver platter. >> Griswold: Yes Mr. Justice but I --
>> Potter Stewart: -- rather than (Voice Overlap) to the Government, am I correct?
>> Griswold: But I dont -- I dont think that literary property is wholly irrelevant here,
but my case does not depend upon it. And I say --
>> Potter Stewart: Your case depends upon the claim as I understand it that the disclosure
of this information would result in an immediate grave threat to the security of the United
States of America? >> Griswold: Yes Mr. Justice.
>> Potter Stewart: However, it was acquired and however its classified.
>> Griswold: Yes, Mr. Justice but I think that the fact that it was obviously acquired
improperly is not irrelevant in the consideration of that question and I repeat obviously acquired
improperly. >> William J. Brennan: May I ask Mr. Solicitor
General? Am I correct that the injunction so far granted
against the Times and the Post havent stopped other newspapers from publishing materials
based on this study or kindled papers? >> Griswold: It is my understanding Mr. Justice,
though I have not had an opportunity to read everything that has been published in other
newspapers. It is my understanding that except with respect
to the items in the New York Times, the Washington Post and the Boston Globe, there has not been
published anything else which is not covered by material already published either in this
series or elsewhere. It would appear to us that other papers have
sought to get into the act and they have assigned their writers to write what you can, but we
have not been able to find new disclosures of previously unpublished material in these
other articles. >> William J. Brennan: Well then, are you
suggesting that these other newspapers do not in fact have either this study or access
to this study or parts of it? >> Griswold: Mr. Justice, I do not know.
I have no information whatever. >> William J. Brennan: But youre not telling
us that they dont? >> Griswold: No.
The only information that I have -- >> William J. Brennan: There is the possibility
that they do of either the study the same thing the Post --
>> Griswold: There is a possibility that anybody has it.
>> William J. Brennan: No, but if that were the fact, am I wrong, Ive always thought that
the rule was that the equity has to be rather careful not to issue ineffective injunctions
and isnt that a rule or the -- >> Griswold: I --
>> William J. Brennan: -- fact to be considered in these cases?
>> Griswold: No, I appreciate that. I am trying to say that on the basis of the
information now known, this is not that situation. I repeat, I have not read these other articles,
I am advised by people who have that they do not contain a new disclosures that they
are -- its now becoming fashionable and popular, you are not a good newspaper unless you got
some of this stuff and that they had put out articles with all kinds window dressing, probably
very well written, but not containing new disclosures.
I am not able to testify to that and I cant point to anything in the record which supports
that. Certainly we are concerned about the problem
of the effectiveness of any order which might be issued here.
>> William J. Brennan: Well I gather you do agree that the ordinary equitable principle
is not to issue useless injunctions, isnt it?
>> Griswold: And not to issue useless injunction and it is our position that there is nothing
in this record or known outside the record which would indicate that this injunction
would be useless. >> Harry A. Blackmun: Mr. Solicitor General,
one detail in that connection. Is there anything in the record or any information
anywhere that the possession by the other newspapers is attributable to the New York
Times or to the Washington Post? >> Griswold: No, Mr. Justice.
We dont know what they have or how they got it nor do -- that matter is equally true with
the New York Times and the Washington Post. >> Harry A. Blackmun: Have either of these
newspapers denied it? >> Griswold: Denied that --
>> Harry A. Blackmun: That the possession on the part of the other newspapers is not
attributable to them. >> Griswold: I dont know.
I dont believe that has been an issue in the Washington Post case or was anything like
that in the -- Mr. Seymour advises me there was nothing like that in the New York Times
case. >> Byron R. White: Mr. Solicitor General,
in terms of equity on an injunction, however, to the extent anything has been published
and has already been revealed, the United States is not seeking an injunction for -- against
the further publication of that particular item?
>> Griswold: No, Mr. Justice. I think that at that point, we would agree
that it becomes futile, it is a useless -- >> William J. Brennan: Well, would that mean
Mr. Solicitor General that if the Government were to prevail here and that sometime, some
document within the scope of the injunction that the Government got was published in some
other newspaper that then either the Times and the Post could run in and get to that
extent the injunction nullify? >> Griswold: I would think so Mr. Justice.
>> William J. Brennan: But thats the only thing they could do, is that it?
>> Griswold: I would think so yes. I may say that it was -- both -- stated in
both lower courts in New York by Mr. Seymour and here by me that the President last January
directed a complete review of classification of all materials.
Several secretaries of state defense and the chairman of the joint chiefs of staff authorized
us then to say that they are prepared to appoint immediately a joint task force to conduct
an exhaustive declassification study of the 47 volumes.
That they will conduct a study on an expedited basis and will complete it within any reasonable
time that the Court may choose. They suggest a minimum of 45 days and upon
completion of the study, the Government will withdraw its objection for the publication
of any documents which it is found no longer relevant to the National Security.
>> Byron R. White: Mr. Solicitor General is the United States pressing separately your
request or your cause of action for the return of the materials wholly aside from an injunction
against -- >> Griswold: It is not involved in this case,
in this Court at this time. >> Byron R. White: It is not?
>> Griswold: No. >> William J. Brennan: No, but is the Government
pressing? Is the Government trying to get these materials
back from the Times and the Post? >> Griswold: I can certainly say the Government
would like to get them back. >> William J. Brennan: That wasnt my question,
my question is, is the Government attempting? >> Griswold: The Government is not at this
time seeking an order for their return. >> Byron R. White: Well, I thought that was
part of your lawsuit -- part of your request for relief and --
>> Griswold: I believe it was, but we did not appeal with respect to that nor is it
covered in our petition for certiorari. Is that not right?
>> Thurgood Marshall: Mr. Solicitor General on this 45-day study, does that depend on
how we rule in this case or is the government going to do it anyhow?
>> Griswold: Mr. Justice, I will urge the Government to do it anyhow.
Of course, if this Court does not allow any injunction, it will be feudal because the
material will be published and there wont be any particular entirely postmortem to say
well it was alright anyhow. >> Thurgood Marshall: Well, suppose the Court
decides the other way, will the study be made? >> Griswold: The study is going to be made.
I will do my best to see that the study is made and I believe I have the full support
of the entire administration with respect to that.
>> Thurgood Marshall: (Inaudible) >> Griswold: Im sorry Mr. Justice.
>> Thurgood Marshall: Would this mean (Inaudible) without this case that the Court, that the
Government has the right to find out whats available to be published.
>> Griswold: (Voice Overlap)Yes, Mr. Justice except that its a massive operation.
There isn't a slightest doubt in my mind that there has been, as long as I can remember
which is quite awhile, a massive over classification of material and there has been much too slow
review to provide declassification and the Government is in the process of taking steps
to try to find a way to work that problem out.
>> Thurgood Marshall: But if the -- this Court would by chance rule against you, then the
Government will surely do it, wouldnt it? >> Griswold: If the Court should rule against
us here, then I -- then it seems to me that it becomes moot with respect to these items,
they can be published and whether we classify them or declassify them as an academic question.
>> Warren E. Burger: Well, the Court would have done a job for you, is that not so?
>> Griswold: Yes, the -- >> Warren E. Burger: Declassify the fact.
>> Griswold: The Court will in effect have declassified the materials.
>> Byron R. White: I dont understand that Mr. Solicitor General.
I had thought the standard that you were operating under here in terms of a prior restraint wasnt
necessarily equivalent to the standard that might be operative in a criminal proceeding
and whether or not a newspaper maybe enjoined from publishing classified information does
necessarily determine some criminal proceeding. >> Griswold: Well, you are certainly right
Mr. Justice. If I may say so in terms of an examination
question, I find it exceedingly difficult to think that any jury would convict or as
an Appellate Court would affirm a conviction of a criminal offense for the publication
of materials which this Court had said could be published as simply is the practical matter
whether it was a crime or not. Well, these are the same materials that were
involved in the New York Times case. All we did was publish them and I find it
difficult to think that such case should be prosecuted or could if they (Inaudible)
>> Byron R. White: But the standard concededly is not the same?
>> Griswold: Its not the same issue and I repeat, I think it would be technically be
a crime if the materials remain classified. Now I would like to get on --
>> Potter Stewart: Mr. Solicitor General, just before you do.
This brings me back to my original question a few moments ago as to what the real basic
issue in this case is. As I understand it, you are not claiming that
you are entitled to an injunction simply or solely because this is classified material?
>> Griswold: No. >> Potter Stewart: Nor do I understand it
that you are claiming -- >> Griswold: Nor because we own it.
>> Potter Stewart: Just let me finish please, that you are entitled to an injunction because
it was stolen from you, that its your property. You are claiming rather and basically that
how, whether or not its classified or however its classified and however it was acquired
by these newspapers, the disclosure, the public disclosure of this material would pose a grave
and immediate danger to the security of the United States of America.
>> Griswold: Yes Mr. Justice. >> Potter Stewart: Now, isnt that correct?
>> Griswold: Yes Mr. Justice. >> Potter Stewart: So, declassifications vel
non doesnt have much to do with the basic issue, does it?
>> Griswold: I agree with you except to this part of the setting.
If this material had never been classified, I think we would have a considerably greater
difficulty in coming in and saying -- well for example, suppose the material had been
included in a public speech made by the President of United States.
>> Potter Stewart: Now it would be in the public domain already?
>> Griswold: Alright but we come in and say, you cant print this because it will gravely
affect the security of United States, I think we would plainly be out.
>> Potter Stewart: And the very Saggy case on the facts and thats --[Laughter]
>> Griswold: Or suppose it had been -- >> Potter Stewart: And this therefore is a
fact case, isnt it? Until we can decide this case --
>> Griswold: No Mr. Justice. >> Potter Stewart: -- we have to look at the
facts, the evidence in this case thats been submitted under scrutiny --
>> Griswold: In large part, yes Mr. Justice but Im 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.
>> Potter Stewart: Well, that may have a great deal to do as to whether -- as to 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?
>> Griswold: Alright Mr. Justice, I repeat, unless we can show that this will have grave
and I think I would like to amend it the -- I know the Courts order has said immediate,
but I think it really ought to be irreparable harm to the Security of United States.
>> Hugo L. Black: I would think with all due respect to Kelly, that the question of classification
of a Court bearing on the question of the scope of review of executive classification?
>> Griswold: Well I think Mr. Justice that is true, but I also think the heart of our
case is that the publication of the material specified in my closed brief will as I have
tried to argue there, materially affect the Security of United States.
It will affect lives, it will affect the process of determination of the war.
It will affect the process of recovering prisoners of war.
I cannot say that determination of the war or recovering prisoners of war is something
which has an immediate effect on the Security of United States.
I say that it has such an effect on the Security of United States that it ought to be the basis
of an injunction in this case. Now, 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 closed -- 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 under the
state in the conduct of delicate negotiations now in process, not in the past, now in process
or contemplated for the future whether this 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.
Now, 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 are
contemplated for the future. And I suggest to the Court that it is perfectly
obvious that the conduct of delicate negotiations now in process are 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 -- 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. And 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, now this was not intended
to be all inclusive, it is illustrative, such as leading to a definite break in diplomatic
relations, affecting the defense of the United States, an armed 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
and what Judge Gesell has -- he had -- 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 a definite break in diplomatic relations, 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 a compromise of military or defense plans and I in my closed brief, I
contend that he was wrong on that, a compromise of intelligence operations and then my closed
brief, I contend that he was plainly wrong on that or a compromise of scientific and
technological materials. And if the standard is that we cannot prevent
the publication of improperly acquired material unless we can show in substance in effect
because thats what he really meant that there will be a break in diplomatic relations or
that there will be an arm detect on the United States, I suggest that the standard which
Judge Gesell used is far too narrow. Now perhaps it lies in between.
My own thought would be that in the present (Inaudible) state of the world, considering
negotiations in the Middle East, considering the SALT talks now going on and it's perhaps
not inappropriate to remember that SALT is Strategic Arms Limitation 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 a success in this kind of negation,
can we have any hope that our children and our childrens 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 are
contemplated for the future, that should be enough by itself to warrant a 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 had been filed with the Court this morning. >> John M. Harlan: Could I ask you a question
before you sit down? I had understood from your papers, and the
briefs that you filed this morning that the only specific relief at this stage, at this
juncture of the proceeding you are asking for is a Court of Appeals decision in the
Times case should be affirmed, namely further hearings before the District Court and accorded
by the Court of Appeals to go froward to conclusion and as regards to Washington Post case, you
are asking only that the proceedings there be confirmed to the proceedings in the Court
of Appeals in the Second Circuit. And is therefore the broader question that
you have been talking about are not before the Court at the moment?
>> Griswold: No, Mr. Justice. I think I cant 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 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 that and as I have said that the standard should be great and irreparable
harm to the Security of United States in the whole diplomatic area, the things dont happen
at 8:15 tomorrow morning and maybe weeks or months.
People tell me that already channels the communication on which a great hope had been placed have
dried up. I haven't a slightest doubt myself that the
material which has already been published and the publication of the other materials
affects American lives and is a thoroughly serious matter.
And I think that 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.
>> Warren E. Burger: Thank you, Mr. Solicitor General.
Mr. Bickel. >> Alexander M. Bickel: Mr. Chief Justice,
may it please the Court. We begin publishing on June 13.
We published on the 14 and the 15 with no move from the Government till the evening
of the 14 despite what is now said to be the gravest kind of danger which one would have
supposed would have been more obvious then it turned out to be.
>> Warren E. Burger: Well Mr. Bickel, arent you -- arent you going to allow sometime for
some of the -- really see what this means before they act?
>> Alexander M. Bickel: Mr. Chief Justice --
>> Warren E. Burger: Meetings drawn and get lawyers into the Courts?
>> Alexander M. Bickel: I planned 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 Government witnesses, high ranking people in the Government quite evidently read
these things on Sunday morning, the following day and no great alarm sounded.
I meant to return to the significance of this point if I could see it, I mentioned it by
the way now only in the process of reciting the chronology.
We were then enjoined under prior restraint on the 15 and we have been under injunction
ever since, the 11th I guess under the order of the Court of Appeals to the Second Circuit.
We would remain under injunction presumably to the July 3 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 had before Judge Gurfein.
It took place on Friday last I believe, started first thing in the morning with open hearings.
We went in-camera as Mr. Seymour said for something upward of four hours, I dont know
the exact time. The record will clearly show that the judges
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 wish 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 not point it was more time as 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 off 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 complaints against
us framed in very general terms on a statute. First one section of it, finally Section 793
(e) of the statute. We have a substantial portion of our brief
that is still devoted to arguing that that 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 not affirmed at any rate accept it.
If I may at this point take up Mr. Justice Stewarts question to the Solicitor General,
referring to our position. We concede, we have all along in this case
conceded for purposes of the argument, that the prohibition against prior restraint like
(Inaudible) 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 two-fold. First on principles as we view them with the separation
of powers which we believe denied 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 on both the end which involved the question of a standard
before one reaches the facts, its a standard on which we deeper greatly from the Solicitor
General, on both these grounds, we believe that the only proper resolution of the case
is the dismissal of complaint. >> Potter Stewart: What was the first ground?
>> Alexander M. Bickel: 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.
>> Potter Stewart: Yes. >> Alexander M. Bickel: As I conceive it Mr.
Justice, the only basis on which the injunction can issue is a theory which I think the Solicitor
General holds of an inherent presidential power.
Now an inherent presidential -- >> Potter Stewart: Based upon --
>> Alexander M. Bickel: His constitutional --
>> Potter Stewart: -- the power of the executive and the area of international relationships
and in the area of the defense of the -- >> Alexander M. Bickel: I so assume.
>> Potter Stewart: Under the Constitution of the United States.
>> Alexander M. Bickel: I so assume. The reason for that being that a Court has
to find its law somewhere, as Holmes would have said I suppose of -- some legislative
will must be present from which the Court draws the law that it can apply.
Then that legislative will has to be the President's, if there is no statute.
Now, I dont for a moment argue that the President doesnt have full inherent power to establish
a system of classification. That he doesnt 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 anyway 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
Im prepared to concede the decision in the Epstein (ph) for example which is cited I
think in both briefs. Briefs that under the Freedom of Information
Act, the scope of review is limited, limited to examining whether it is (Inaudible).
Nor do I argue the -- that the President doesnt have standing in the sense in which Baker
and Karr distinguishes between standing and justiceability.
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 government of -- internal
management of the government, but out going -- out looking substantive law which can form
the basis for a judicially issued injunction imposing a prior restraint on speech.
The decisive issue that ties in at this point and our ultimate First Amendment point is
of course the exception carved out by Chief Justice Hughes in Near v. Minnesota for those
-- 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
and any other aspects of it or rule that is deeply part of the formative experience out
of which the First Amendment came, the rule against the prior restraint, based on the
experience that prior restraints fall on speech with a special brutality and finality and
procedural ease of all their own which distinguishes them from other regulations of speech.
If a criminal statute chose speech, a prior restraint freezes it.
Its within that well established doctrine that the exception arises.
Now, as Chief Justice Hughes formulated it, it referred to, he actually said, we would
all assume that a prior restraint might be possible to prevent actual obstruction of
the recruiting service, this is the Chief Justice language, or the publication of sailing
dates of transports or the number and location of troops.
I suppose that under 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 isn't cited -- hasnt
been cited against us which again applicable which is why it hasnt been cited against us
because thats not what we report, thats not -- that isnt in our papers.
Now, that being the case, there is no applicable statute under which we are covered and the
question arises as a matter of inherent presidential authority, what kind of feared event would
give rise to an independent power on the part of the President?
Its the question of in a sense that was saved in Hirabayashi versus United States, the first
of the Japanese exclusion cases. And its a question which in its own context
of course, Youngstown Sheet & Tube Company v. Sawyer answered in the negative.
Now, my suggestion would be that whatever that case, that extremity, absolute other
extremity in which action to save for the public safely is required.
Whatever that case maybe in which under this Constitution under its rules of separation
of powers, the President has independent inherent authority to act domestically against citizens,
let alone to impose a prior restraint, whatever that case maybe, it cannot be this case.
Whatever that case maybe, it sure is a magnitude of an obviousness that would lead to the eye
and thats why in part Mr. Chief Justice, I mentioned at the beginning the period of time
that has passed. I would suppose that stretching our imagination
and trying to envision that case, the one characteristic of it, suggested indeed by
the example of 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 surely, immediately see of such an imagined event,
would be that its obvious, that the public safety is in issue, the time of the essence.
I submit that that cannot be this case. It cannot be that it has taken, that it has
to take the Government which has been reviewing this documents for many months, not just in
connection with this case but in reply to an inquiry made by Senator Fulbright is the
record of our hearings in New York shows, it cannot be that a Government consisting
after all of more than just the three witnesses, five witness that we heard in New York or
the ones that were heard here, over this length of time has an unfamiliar -- unfamiliarity
with these documents, substantially they might be which is so great that when news of their
publication comes up, no body in the Government knows that somewhere in those documents is
one which presents a mortal danger to the Security of the United States.
And I would submit secondly that while error is always possible, judge Griffin and the
Court of Appeals for the Second Circuit which affirmed them on the record that he had before
him and Judge Gesell in the Court of Appeals here, all those judges can't have been that
wrong. This --
>> Harry A. Blackmun: Mr. Bickel, this isnt your case, but reading from Judge Wilkeys
dissent -- >> Alexander M. Bickel: Yes sir.
>> Harry A. Blackmun: -- when I say harm, I mean the death of soldiers, the destruction
of alliances, the greatly increased difficulty of negotiation with our enemies.
The inability of our diplomats and negotiators, honest brokers between would be belligerence.
I take it you disagree fundamentally with that statement?
>> Alexander M. Bickel: Not entirely, Mr. Justice Blackmun, for example the death of
soldiers. I would disagree that that impairment of diplomatic
relations can be a case for a prior restraint, I would say even under a statute.
I would not disagree that the death of soldiers as in troop ship or as an example, Chief Justice
Hughes did. The difficulty I would have would be that
nothing that any of these judges including Judge Wilkey because he I suppose is talking
about what might be shown by the Government, nothing that any of these judges have seen
is related by a direct casual change to the death of soldiers or anything grave of that
sort. What characterizes, I have heard it and everything
I have read, what characterizes every instance in which the Government tries to make its
case factually is a chain of causation whose lengths are surmised and speculation, all
going toward some distant event itself, not of the gravity that I would suggest is offensive.
>> Harry A. Blackmun: You know these records better than I do, but again going back to
Judge Wilkey, he says, but on careful detailed study of the affidavits and evidence, I find
a number of examples of documents which if in possession of a Post and I repeat this
is the Post case, and if published would clearly result in great harm to the nation.
Now I repeat my question, you therefore disagree fundamentally to what he seems to say?
>> Alexander M. Bickel: Well, I beg your pardon Mr. Justice, I am not familiar and I should
be with the Washington Post case. I had thought that Judge Wilkey talked about
-- dissented on the ground that he would like more evidence to come in.
If he found -- if this is a statement about the evidence that he heard or that was heard
before Judge Gesell then depending on what the standard is that he has in mind, I would
think that language doesnt quite communicate to me what the standard is and I doubt that
its the standard that I would contend, the narrow standard that I would contend for,
depending on the standard that he has in mind, he is either wrong about a standard or seven
judges disagreed with him, but Im sorry. Im not sufficient familiar with the Washington
Post case. >> Byron R. White: Professor, you stand -- you
are contending for this grave and immediate or not?
Is that -- >> Alexander M. Bickel: The standard --
>> Byron R. White: -- futile for you? >> Alexander M. Bickel: The standard that
I would contend for and the difficulties of words are simply enormous, one has to --
>> Byron R. White: Surely. >> Alexander M. Bickel: -- bring in to those
mind an image of something, some event and try to describe it.
The standard that I would contend for would have two parts of it.
One would be and let me also say that I would differentiate between a standard applicable
to the President acting on his own. The President acting in the case saved pre
se Hirabayashi for example and a prior restraint being imposed pursuant to a well drawn statute
which defines the standard in the case. I would demand less of the statute than I
would demand to the President. But the standard in general that I would have
in mind would at one end have a great event, a danger to the nation.
Some of the things described in the top secret, in description of top secret classification
in the executive order, Solicitor General read off, would I think fit that end of the
standard. At the other end would be the fact of publication
and I would demand and this would be my second element that the chain, the length between
the fact of publication and the feared danger, the feared event be direct and immediate and
visible. >> Byron R. White: So you, I take it then
that you could easily concede that there maybe documents and these 47 volumes which would
satisfy the definition of top secret in the executive order and nevertheless would not
satisfy your standard? >> Alexander M. Bickel: That would be chiefly
for the reason that as is notorious. Classifications are imposed --
>> Byron R. White: No and my question was -- let's concede for the moment that there
are some documents -- >> Alexander M. Bickel: Which are properly.
>> Byron R. White: They are properly classified top secret.
You would say that does not necessarily mean that your standard is satisfied.
>> Alexander M. Bickel: Thats correct, Mr. Justice.
I would say that parts of -- >> Byron R. White: I take it, I dont have
and read anything in any of your documents or any of this cases which the newspaper suggest
for a moment that there is no document in these 47 volumes which satisfies the, properly
the definition of top secret. >> Alexander M. Bickel: That there is no -- well,
no. I dont know about --
>> Byron R. White: Well you dont deny that, do you?
>> Alexander M. Bickel: I have no knowledge. Ive never been near the documents Mr. Justice.
>> Byron R. White: Well I know but -- so but your position must be then that even if there
is a document or so, none of them satisfies your standard?
>> Alexander M. Bickel: I would say that today I had, if asked that question on the day we
appeared, at the day I appeared before Judge Gurfein on a temporary restraining order,
my answer would have been, I expect not, I trust the people at Times.
I -- Im fairly certain not, by now, Mr. Justice after all this time having read the submissions
of the Government although I was hit with another one this morning, not a separate submission,
but an explication of the earlier ones but I havent had a chance to glance at, yet this
literature like some scholarly literature tends to get ahead of us.
Having read the submissions of the Government, I am flatly persuaded that theres nothing
in there because if theres nothing that would meet my standard in there for a statute or
for a independent executive action because if there were, it surely should have timed
out by now. It cannot be that after I gather, the Solicitor
General had the same experience yesterday afternoon that I saw Judge Gurfein have it.
Please show me? Now which are the three, which are the five,
which are the ten? Which are the most important of these?
All that one ever got, all that Ive ever heard have been statements of the feared events
in terms of effect on diplomatic relations. If its a military matter, why then in terms
of the addition of a possible cause to a train causal factor, to a train of event thats well
on the rails as is and propelled by sufficient other factors.
That sort of statement is the only thing weve heard and I would submit that that does not
meet any possible First Amendment standard. It doesnt meet it either in the statement
of the seriousness of the event thats feared or what is more important and more obvious
in this case in the drawing of the link between the act of publication as the cause of that
event and the event that is feared. That link is always I suggest speculative,
full of surmises and a chain of causation that after its first one or two links, gets
involved with other causes operating in the same areas, so it becomes -- so that what
finally cause of the ultimate event becomes impossible to say which the effective cause
was. And my -- the standard that I would propose
under the First Amendment would not be satisfied by such showing.
>> Potter Stewart: And your standard is that it has to be an extremely grave event to the
nation and it has to be directly, approximately caused by the publication?
>> Alexander M. Bickel: Thats exactly correct. >> Potter Stewart: And I gather then that
your basic argument with the statutory or the regulatory definition of top secret is
with the word could because that definition says unauthorized disclosure which could result
in blah, blah, blah? >> Alexander M. Bickel: Yes, I was addressing
myself only to the events -- >> Potter Stewart: You would insist that it
would probably result -- >> Alexander M. Bickel: I would insist that
for purposes certainly of any action in the Presidents inherent power which is the case
before us. >> Potter Stewart: Now Mr. Bickel its understandably
and inevitably true that in a case like this, particularly when so many of the facts are
under seal, its necessary to speak in abstract terms?
>> Alexander M. Bickel: Yes sir. >> Potter Stewart: But let me give you a hypothetical
case. Let us assume that when the members of the
Court go back and open up this sealed record, we find something there that absolutely convinces
us that its disclosure would result in the sentencing to death of a hundred young men
whose only offense had been that they were 19 years old and had low draft numbers, what
should we do? >> Alexander M. Bickel: Mr. Justice, I wish
there were a statute that covered it. >> Potter Stewart: Well, there isnt, we agree
or you submit, so Im asking in this case what should we do?
>> Alexander M. Bickel: Im addressing a case which I am as confident as I can be of anything,
Your Honor, will not find when you get back to your chambers.
Its a hard case. I think it would make bad separation of powers,
but its almost impossible to resist the inclination not to let that information be published of
course. >> Potter Stewart: As you know, as Im sure
you do know, the concern that this Court now has term after term with people who have been
convicted and sentenced to death, convicted of extremely serious crimes, you know, that
the capital cases and Im posing you a case where the disclosure of something in these
files would result in the death of people who --
>> Alexander M. Bickel: You are posing or --
>> Potter Stewart: -- or nothing. >> Alexander M. Bickel: Your opposing the
case of course Mr. Justice in which that element of my attempted definition which refers to
the chain of causation. I mean, --
>> Potter Stewart: I suppose in a great big global picture, this is no --
>> Alexander M. Bickel: No -- >> Potter Stewart: This is not a national
threat. >> Alexander M. Bickel: No sir.
>> Potter Stewart: There are at least 25 Americans killed in Vietnam every week these days.
>> Alexander M. Bickel: No sir, but I meant -- its a case in which the chain of causation
between the act of publication and the feared event, the death of this hundred young man
is obvious, direct, immediate. >> Potter Stewart: Thats what Im assuming
-- >> Alexander M. Bickel: Thats right.
>> Potter Stewart: -- in my hypothetical case. >> Alexander M. Bickel: I only say as to that
that it is a case in which in the absence of a statute, I suppose most of us would say
-- >> Potter Stewart: You would say the Constitution
requires that it be published and that this men die, is that it?
>> Alexander M. Bickel: No. Im afraid I have -- Im afraid my -- the inclinations
of humanity overcome the somewhat more abstract devotion to the First Amendment in a case
to that sort. I would wish that Congress took a look to
the seldom used and at the seldom used and not very -- in not a very good shape Espionage
Act and clean them up so that we could have statutes that are clearly applicable within
vagueness rules and what not and so that we that we dont have to rely on presidential
power. But the burden of the question is do I assume
that the event has to be of cosmic -- >> Potter Stewart: Nature question.
>> Alexander M. Bickel: Well, no sir. The examples given by Chief Justice Hughes
himself are not. A troop ship is in the sense that hundred
men or the location of a platoon is in the sense that hundred men.
I dont assume that. I have -- I do honestly think that that hard
case would make very bad separation of powers. >> Warren E. Burger: Professor Bickel, let
me alter the illustration a little bit, the hypothetical.
Suppose the information was sufficient. The judges could be satisfied that the disclosure
of a link, the identity of the person engaged in delicate negotiations having to do with
the possible release of prisoners of war, the disclosure of this would delay the release
of those prisoners before a substantial period of time.
Now this and Im posing that so that it is not immediate, is that or is that not in your
view of matter that should stop the publication and therefore avoid the delay and the release
of the prisoners? >> Alexander M. Bickel: Mr. Chief Justice,
on that question which is of course a good deal nearer to whats bruited about anyway
in the record of this case. I can only say that unless which I can imagine
can be possible, the link of causation is made direct and immediate.
Whether the -- even though the event might be somewhat -- somewhat distant, but unless
it can be demonstrated that it is really true if you publish this, that will happen or there
is a high probability rather than as is typical of those events.
There are 17 causes feeding into them. Three of those are -- anyone of those other
than the publication is entirely capable of being the single effective cause.
And the real argument is, well you add publication to that and it makes it a little more difficult.
I think Mr. Chief Justice that that is a risk that the First Amendment signifies that this
society is willing to take, that is part of the risk of freedom that I would certainly
take. >> Warren E. Burger: I get a feeling from
which you have said, although you havent addressed yourself directly to it that you do not weigh
heavily or I think the Courts should weigh heavily the impairment of sources of information
either diplomatic or military intelligent sources.
Now -- >> Alexander M. Bickel: Mr. Chief -- Im sorry.
What -- >> Warren E. Burger: I get the impression
that you wouldnt consider that enough to warrant the -- an injunction.
>> Alexander M. Bickel: In the circumstances of this case Mr. Chief Justice that there
-- I think it -- Im perfectly clear in my mind that the President without statutory
authority, no statutory basis goes into Court asks for an injunction on that basis, that
if Youngstown Sheet & Tube Company v. Sawyer means anything, he does not get it.
>> Warren E. Burger: Well then let me -- >> Alexander M. Bickel: Now --
>> Warren E. Burger: Make -- >> Alexander M. Bickel: Where under a statute,
we dont face it in this case and I really dont know.
Id have to face that if I saw it. If I saw the statute, if I saw how definite
it was. >> Hugo L. Black: Under the statute, there
is a difference because the First Amendment provides that Congress shall make no law breeching
freedom of the press. >> Alexander M. Bickel: Well --
>> Hugo L. Black: And you could read that to mean Congress may make some laws, breeching
freedom to press? >> Alexander M. Bickel: No sir.
Only in that I have conceded for purposes of this argument that some limitation, some
impairment of the absoluteness of that prohibition is possible and I argue that whatever that
maybe, whatever that maybe it is surely at its very least when the President acts without
statutory authority because that inserts into it as well as separation of powers.
>> Hugo L. Black: (Inaudible) argument for the times to be making, that Congress can
make all this illegal by passing laws? >> Alexander M. Bickel: Well, I didnt really
argue that Mr. Justice. At least I have -- I hope --
>> Hugo L. Black: That was a strong impression you left in my mind?
>> Alexander M. Bickel: Well, I replied to the Chief Justice on a case that arose without
a statute and far distinguished because its crucial to the -- for purposes of this case
to distinguish between the authority which is here claimed of the President to act independently
without a statute and the possibly greater authority of the whole Government through
the machinery of legislation to act in similar premises of which I concede nothing that I
dont have to Mr. Justice. >> Warren E. Burger: Professor Bickel, I have
one question thats prompted by this exchange. Generally speaking, there are, as I understand
it, no statute is granting immunity to newspaper reporters from disclosing their sources, but
there is a firm claim made by newspapers, by reporters and there have been a number
of cases on that. If I read the briefs and the accounts of those
other cases in California and several other places, claim of the newspaper is that the
First Amendment protects them from revealing their source even to a grand jury in the investigation
of criminal matters because otherwise, the newspaper sources would dry up.
Now, thats generally the thesis of the press, is it not?
>> Alexander M. Bickel: Well, there are some cases that are on this Courts docket as you
know Mr. Chief Justice for next fall. One of them with which Im most familiar is
the Caldwell case from California in which there was a refusal to reveal sources upheld
by the Court of Appeals for the Ninth Circuit even to the point of not requiring an appearance
before the grand jury. But the claim is very substantially qualified,
that is to say Caldwell holds, one doesnt know how far that might be taken and perhaps
some of the other cases will require the argument to take it somewhat farther, but Caldwell
on its own holds that in circumstances where the Government, as indeed Attorney General
Mitchells regulations themselves provided, which are issued after the Caldwell case started.
In cases where the Government hasnt shown a clear necessity for the evidence, hasnt
shown that it hasnt been able to get it elsewhere, hasnt show that its central, inescapably central
to the proof of whatever crime it is that the grand jury is investigating that in those
circumstances where the claim of confidential communication is made by the reporter, there
is a sufficient First Amendment interest to protect that claim on the theory that if confidential
sources dry up and they -- the theory runs would dry up because there were no protection
of confidentiality, there would be a diminished flow of news.
I know that -- >> Warren E. Burger: Yes, but the argument
then is that the newspapers, newspaper reporters claim for themselves a right which this argument
now would deny to the Government? >> Alexander M. Bickel: Mr. Chief Justice,
I know there is an appearance of unfairness or unevenness about it, but I think the answer
that a reporter would make and an answer that I find wholly persuasive is that neither in
this case nor in a case like Caldwell does the New York Times or does a reporter claim
something for himself, but rather that the claim is made in order to vindicate the First
Amendment and those interests which that great document serves.
Thank you. >> Warren E. Burger: Thank you.
Mr. Glendon. >> William R. Glendon: Mr. Chief Justice,
Your Honors, General Griswold, Mr. Bickel, I think it might be helpful if I address my
attention to the facts which lie behind these cases or this case, the Washington Post case
as it comes before Your Honors. Because, I think we have heard here a familiar
plea, familiar to what has been involved in this case over this last intense week that
some more time is needed while the First Amendment is suspended.
We first face this question, Judge Gesell did some week ago and after a hearing on the
temporary restraining order, unconvinced by the generality and lack of specificity, he
denied the temporary restraining order. The Government has a course with its right
promptly went up to the Court of Appeals and in an extraordinary late session, everything
has been -- everything has been late I may say in this case, late hours, the Court of
Appeals two to one judges Rob and Judge Robinson granted a temporary restraining order to the
Government to give them some time and thus for the second time in two weeks and the second
time in 200 years, the United States succeeded in obtaining a temp -- prior restraint against
the press. Now, the Court of Appeals stated -- the Court
of Appeals stated -- in its order that it would set -- send it back, send it to the
District Court and the District Court would try it to determine whether the granting of
an injunction with a publication of material would so prejudice the defense interest of
the United States are a result in such irreparable injury to the United States as to justify
the extraordinary relief that was asked to it, a prior restraint.
>> Potter Stewart: Before you proceed Mr. Gendon --
>> William R. Glendon: Yes sir. >> Potter Stewart: -- you agree that that
is the proper test? >> William R. Glendon: I think thats a proper
test Your Honor, yes. Thats the test that we tried the case under
and I think the implications of the words may require some development and Im sure there
will be arguments as to exactly what those words mean.
But thats the test we tried to -- we tried the case.
>> Potter Stewart: And then would you repeat the words, so that Ill have them in mind?
>> William R. Glendon: So prejudiced, so prejudiced the defense interests of the United States
result in such irreparable injury to the United States as would justify restraining the publications.
>> Potter Stewart: And that would not cover the simple death, say of a hundred or 200
young men? >> William R. Glendon: Well, Your Honor lets
say, thats a hard case, obviously. Im trying and I think we all have to measure
this case in the light of what we have before us and what we know we have before us.
>> Potter Stewart: Well we have a lot of things under seal that I dont want to have and --
>> William R. Glendon: Yes and Im -- >> Potter Stewart: Ive seen some off but havent
-- >> William R. Glendon: Im going to address
myself to those, Your Honor, and Im going to point out as the best I can within the
limits here and as did other Courts and the Government has not yet brought anything like
that case to Your Honors, nothing like it and what we have heard, Your Honor, is much
more in the nature of conjecture and surmise. >> Warren E. Burger: Can anyone know in any
circumstance the consequences of disclosure of sources of information for example, the
upsetting of negotiations if that were hypothetically true in Paris or possible negotiations that
we dont know anything about, for the release of war prisoners, that sort of thing.
How does a Government meet the burden of proof in the sense that Judge Gesell laid it down.
That doesnt bring any battleships to the outer limits of New York Harbor or set off any missiles
but would you say that its not a very grave matter?
>> William R. Glendon: Your Honor, I think if we are to place possibilities or conjecture
against suspension or abridgment of the First Amendment, the answer is obvious.
The fact, the possibility or conjecture of the hypothesis that diplomatic negotiations
would be made more difficult or embarrassed, does not justify and this is what we have
in this case and I think it's all we know, does not justify suspending the First Amendment,
yet this is whats happened here. Conjecture can be piled upon surmised, Judge
Gurfein used the word (Inaudible) and Im sure used it respectfully.
But he said when there is a security breech, people get the juris.
And I think as the -- maybe the Government has a case of the juris here, but that I submit
does not warrant the -- stopping the press in this matter in the absence of a showing.
And I like to turn to that because this matter as I dont have to say, does not come undeveloped
before Your Honors. Two fine District Court Judges, two fine Court
of Appeals have considered this and in each I think its fair to say even in the New York
case, the Government did not meet its burden. And so it says to us, but one more time, just
one more time and this is where I was a moment ago when I said that Judge Rob and Judge Robinson
agreed to give them a chance. Now we had a hearing in the District of Columbia
and I like to, if I may, comment upon what the Government said and it said it twice about
that hearing because really Your Honors are being asked to -- on a representation and
it's a I know a sincere representation by General Griswold, but on a representation
if we are given some more time, maybe we can find something.
But here is what the Government says in its brief and it said it again yesterday.
They said in New York, the Government was not able to present to the Court all of the
evidence relating to the impact of the disclosure of this material upon foreign relations and
national defense that it was able to present to the District Court in the Washington Post
case. We had and the Government was accorded the
fullest hearing that it wanted. We had -- we started at the unusual hour of
8:00 in the morning. The Governments case proceed it through the
luncheon hour. We cross examined as we thought it was necessary.
The Court had plenty of time to consider the matter he delivered, I think you agree, whether
you agree with this result, a finely reasoned opinion.
So there was no rush and no pressure. Then the matter went up to the Court of Appeals
and there and the Court of Appeals had a session some three hours the next day.
And I might say too and I think this is perhaps important, theres been no restriction on the
Government's latitude because they did have this in-camera hearings which frankly was
very difficult from our point of view to deal with.
But they did have them and they had it in-camera hearing in the Court of Appeals.
So to say now that we need more time, I think does not measured up to the other side, the
other side of the equation which you're being asked to do and that is to restrain two newspapers
while others are publishing from giving their readers the news.
And it is of course their readers that we feel.
I think properly their rights are involved too.
Their right to know and Im talking about currency and immediacy there is now involved in this
country, the country is on gage and in intense national debate.
Things are happening this week on that score. These lawsuits undoubtedly precipitated the
executive to turn over these documents to the Congress.
Now Senator Fulbright as Im sure youre all aware have been trying for some two years
I understand to get these documents. And I think its of interest here because we're
dealing with this case and these documents and I think classification is important here
in your consideration of these cases because these documents were classified top secret.
Now they were classified top secret because some unknown individual was not presented
to the Court whose subjective judgment couldnt be explored despite the district judge asking
that hes be brought in. Perhaps it was a good reason, we dont know,
decided that they were top secret, they were all top secret because one was top secret.
There had been no review of these documents except for a one individual who said that
he had been reviewing them for some two years for sensitivity and the sensitivity arose
from Senator Fulbright's frequent request to get these documents so the Congress could
make the laws and perhaps the public would be informed.
>> Hugo L. Black: Does the record show how long the Post had these documents in his possession.
>> William R. Glendon: How long it is -- in his possession, it does not show Your Honor.
>> Warren E. Burger: Does it show, if you know how long when there are times have the
documents in their possession before the Post got it?
>> William R. Glendon: The record in our case does not show that Your Honor, but I have
read and perhaps this gentleman, Mr. Bickel can answer that and I understood they had
it in their possession for some months or month or two.
>> Warren E. Burger: I got that impression somewhere, three to four months.
>> William R. Glendon: Yes. >> Unknown Speaker: I dont believe its in
the record. >> William R. Glendon: It is not in the record,
but thats my best answer to that. Now, after this proceeding was brought and
I think again it has filed the significance of this proceeding and during the course of
it, although starting out at the point that these documents were top secret and none could
be disclosed, the Government has offered to review them and perhaps some of them they
say will be declassified which I suppose are some sort of admission that the original classification
and the original attitude towards them was wrong.
>> Warren E. Burger: Of course it could be that something classified in 1965 and properly
but be no longer subject to classification or even 69 or 70, isn't that true?
>> William R. Glendon: That is correct, Your Honor and furthermore, some of these documents
were classified, go back of course to 1945, the documents of that ancient.
The document itself is entitled the history, its called the history and from what I have
seen of it, thats what it is. Now, the Court in our case had before it and
Your Honors will see the evidence which Im aware that apparently has been -- there has
been today additional references made to the documents, but it is a fact and I think its
a significant fact that the judge -- they are asked the Government to show them a document.
These extravagant claims were made and I say this respectfully, but, this has been a case
of broad claims and narrow proof. Substantial claims have been made and if you
accept them, they would be worried, but were talking here about proof.
>> Warren E. Burger: Was there an order at anytime to produce all the documents in the
possessions of the either of the Newspapers for examination?
>> William R. Glendon: The Government -- there was not Your Honor.
>> Warren E. Burger: Was there a request for such an order?
>> William R. Glendon: The Government made such a request and because of the concern
that the newspaper has as to protection of its source, the documents we were advised
would indicate the source. >> Warren E. Burger: What you mean that --
>> William R. Glendon: That the documents that we had would indicate the source.
>> Warren E. Burger: Who denied that request, the District Judge?
>> William R. Glendon: Yes, and here is it how it resulted.
>> Warren E. Burger: He left that override the Federal Rules of Civil Procedure on discovery?
>> William R. Glendon: Here is he resolved the matter, and I think he did it very fairly
Your Honor. He said if you are not willing to produce
the documents, we do not have all the documents, but if will not produce all the documents
because of your claim of First Amendment source protection then I will assume that you have
all the documents. And therefore, the Government can show me
any document, show me any document and I will accept that as being in your possession for
the purpose of the case. And I think that was a very -- in the circumstances,
a very fair way to do it. I --- no more than any other lawyer like to
be In that position, but I have to respect my clients assertion which is a substantial
and I think a valid assertion that a newspaper is entitled to protect its source and so thats
the way it was. >> Warren E. Burger: Mr. Glendon, I recall
an ancient doctrine of equity that about people who come into equity and certain burdens on
them. Doesn't it strike you rather extraordinary
that in a case which largely centers on protection of sources, the newspapers are making and
refusing to reveal documents on the grounds that they must refuse in order to protect
their sources? >> William R. Glendon: Your Honor, I dont
understand that that is the issue here. I think -- I dont know --
>> Warren E. Burger: The issue, it say that -- its really -- its in this case.
>> William R. Glendon: This is only -- >> Warren E. Burger: To the proceeding and
there are certain standards about people coming into equity, coming in with clean hands as
one of them and prepared to do equity. >> William R. Glendon: We did not come into
equity. The Government came into equity but I dont
-- >> Potter Stewart: You were brought in?
>> William R. Glendon: We were brought in kicking and screaming, I guess is --[Laughter]
>> Warren E. Burger: You are now in the possession -- in the position of making demands on First
Amendment and you say the newspaper has a right to protect its sources, but the Government
does not? >> William R. Glendon: I see no conflict,
Your Honor, I see no conflict at all. We're in the position of asking that there
not be a prior restraint in violation of the Constitution imposed on us and that equity
should no do that. We are also in the position of saying that
under the First Amendment, we are entitled to protect our sources, and I find -- frankly
I just dont find any conflict anywhere Your Honor.
The record shows, and I think this is important in Your Honor's consideration too, we are,
as I said, talking about -- we are talking about allegedly top secret documents and the
record shows that these misnomers are of the secret and top secret, on and perhaps in the
breech in Washington and the way the Government does business and the way it has perhaps to
do business, but it is certainly true, there is massive, all the classification of documents
in Washington, we have in the record instances where one Government official or another has
quite clearly indicated that while everything on his desk maybe classified in one fashion
or another, in fact perhaps 1%, 2%, 5% of it really is classified and I think thats
a realistic fact of life here. We also have clearly in the record that the
Government and the press who have some mutual, perhaps antagonism isnt quiet the word but
they are naturally in opposite corners. The press is trying to get as much news as
it can. The Government particularly where it maybe
embarrassing or where it maybe overly concerned or may feel is embarrassing or may in Judge
Gurfein's words have the jurors is trying to prevent that sometimes.
In other occasions, the Government engages itself in leaks because some official will
feel that in the public interest, it's well for the public to know and that overrides
any particular judgment of our security or classification.
And the record Your Honors will find as replete with instances where leaks of confidential
secret, top secret material have been given to the press or the press have found them
out and published them and of course nothing has happened.
Now, I think thats significant because here, this is sort of thing we feel we're talking
about. As far as classification itself is concerned
and you will remember that the documents that we are talking about are a mixed bag, they
have -- >> Byron R. White: Mr. Glendon, would you
be making the same argument if your client had stolen these papers?
>> William R. Glendon: I dont think that the source, I dont think that how we acquired
on Your Honor features in this case -- >> Byron R. White: Well, then it wouldnt make
any difference, the leak aspect has no -- it has no relevance to the case either then?
>> William R. Glendon: I think its relevant as background because this is not -- this
is the way that -- >> Byron R. White: Well, then it would be
relevant if you stole them? >> William R. Glendon: I think so.
>> Byron R. White: And youd be making the same argument if your client sent an agent
into the Government and stole these papers and then the Government attempted to restrain
publication of them? >> William R. Glendon: I just dont think that
the -- I dont think that the manner in which we --
>> Byron R. White: Well that one is irrelevant as the other?
>> Thurgood Marshall: Well it is because if the Government will leak 47 volumes at the
time -- >> William R. Glendon: Well, Your Honor I
think if you examine the -- thats certainly not true.
That's certainly not customarily and the size here is different.
But I think that you will find Your Honors in the affidavits that we have attached to,
and exhibits that we have attached to our affidavits indicating secret stories, allegedly
secret, based on the secret information. Theres probably more secret information there
then you will find them into these documents if you examine them.
I started to -- >> Thurgood Marshall: What basis did it have
on this case? >> William R. Glendon: I think its simply
a matter of background Your Honor and atmosphere to show that this is not an untoward or unknown
situation and when we hear about how our foreign allies or our foreign friends will be shocked
or appalled or anything else, its something not so.
This is -- this happens. This is one of the facts of life.
I tried to I was starting to advert to the District Judge telling the Government to show
it which is what he was supposed to do. Thats what the Court of Appeals sent it back
for and he requested to show these documents, these top secret documents, they were in the
Courtroom and the Government was invited and it has been invited to show and lets look
at what were talking about instead of dealing just with abstractions and conjectures.
Now, this was on the so called secret transcript and Im not going to avert to it other than
to say that the one document that the Government produced in response to this invitation was
set forth, certain options with reference to the war and I wont go any further than
that, which I think any high school boy would have no difficulty in either putting together
himself or readily understanding. All of them are on the public press.
Now this is a sort of proof we've been faced with and this is the world of whisk that weve
been chasing. >> Harry A. Blackmun: Well, Mr. Glendon, then
I come back to you with the same inquiry I made to Professor Bickel.
At least, it was close enough to persuade one judge of the Court of Appeals to disagree
with what youve just said? >> William R. Glendon: Well Your Honors -- Your
Honor, that is true. Id like to avert to fact that the other members
of the Court of Appeals felt constrained after they read that particular dissent.
Just yesterday they issued an amendment to their opinion in which they reiterated that
they disagreed with Judge McKinnon Judge Wilkey, which to me was some indication of the strength
and depth of their feeling, but Your Honor is right.
There is a Judge Wilkey felt and I said to Your Honor that that in my -- I say it respectfully
is not based on the record. There is nothing in the record that I know
off that would and -- I think I know the record, as far as the one disclose to me there are
some perhaps new material this morning. Is not -- but as far as the record has been
disclosed to me, there is absolutely nothing to justify that statement and I -- as I say
the Court of Appeals felt strong enough about it to issue another statement, to issue an
amendment in which they specifically said they disagree.
Now -- >> Potter Stewart: This then really is, the
issues in this case really are factual issues, arent they?
>> William R. Glendon: Well -- >> Potter Stewart: I mean, though I understand
it and this is -- thats my understanding initially, I havent heard anything really to --
>> William R. Glendon: Largely -- yes. >> Potter Stewart: -- upon my understanding,
you agree that an injunction could issue despite the First Amendment if it were shown, proved
by the Government that there was something here, disclosure of which would directly cause
a great irreparable and immediate danger to the country, you agree that an injunction
could issue. You just simply say they have shown nothing
of the kind, isnt that right? >> William R. Glendon: I -- they have shown
nothing of that kind or by any other measurable standard that I understand could possibly
be involved in this case. Would you take the top --?
>> Potter Stewart: So thats a matter of fact? >> William R. Glendon: -- take the top secret
definitions or anything else, yes, but there is something behind us too as I -- which I
think perhaps is illegal issue and thats the scope of the review here.
>> Potter Stewart: Scope of review of what? >> William R. Glendon: Review of the findings
of the District Court. >> Potter Stewart: Of fact, of findings of
fact under Rule 52 A, isnt it? >> William R. Glendon: Thats right.
>> Potter Stewart: So it's factual issue. >> William R. Glendon: Yes and there is one
legal question, perhaps Ill come later and that is the futility of an injunction here,
but I want to -- >> Byron R. White: Well, then I think if you
do a certain comparison, not a single document in these 47 volumes which is now entitled
a top secret classification as defined in the executive orders.
>> William R. Glendon: No sir. I assert this Your Honor and Im involved in
the -- >> Byron R. White: You said he has testified
top secret standard or any other -- >> William R. Glendon: Any other standard
Im talking about. I dont -- I think that the standard is reasonably
clear here, but whether you use words such as gravely prejudice to United States or irreparably
injure the defense of the United States, whatever the standard maybe.
>> Byron R. White: Well some standard as they are more specific by the test to top secret
classification? >> William R. Glendon: Yes.
>> Byron R. White: Thats the standard? >> William R. Glendon: Yes sir.
>> Byron R. White: You would say a proper standard (Inaudible)
>> William R. Glendon: Clearly. >> Byron R. White: By any doubt?
>> William R. Glendon: By anything the Government has brought forward.
>> Byron R. White: By any doubt that these secrets, I wonder what specified --
>> William R. Glendon: Well Your Honor, the Government came in the Court.
They suspended the First Amendment. They stopped us from printing and they said
they were going to prove this and this is an injunction proceeding.
Now, it may be that the Government would feel that the Court should become the defense department's
security officer and they should -- that the Court should delve into this pile of paper
and 47 volumes and on its own from time to time whenever they so moved.
The Government is so moved that they should -- the Courts should look from them.
I say Your Honor, in our system, as I understand it, when you bring a case; youre 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.
>> Byron R. White: Do you agree that Judge Gesell would find the top secret definition
he is going to ask? >> William R. Glendon: Yes, I think thats
-- that that would appear from his opinion. >> Byron R. White: That's what he thinks?
>> William R. Glendon: He looked at it that way from his opinion, yes Your Honor.
As far as I can determine from -- >> Byron R. White: (Inaudible)
>> William R. Glendon: Yes, I think that that fits in clearly to what we're talking about
under the doctrine of Near v. Minnesota, yes sir.
>> Warren E. Burger: If the Trial Judge used a clearly erroneous standard, then the case
is not simply controlled by facts, is it? >> William R. Glendon: Your Honor Im sorry
-- >> Warren E. Burger: 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? >> William R. Glendon: Well, I think that
clearly as I -- clearly erroneous rule would apply to the facts, what facts he found in
that points, Your Honor. >> Warren E. Burger: But if he used the wrong
standard then it ceases to be just a fact case?
>> William R. Glendon: Well I fell 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 whether 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 -- and so substantial that it justifies whats been done here.
I mean, it isnt 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 interest of the United States is the people's interest.
And you are weighing here and this is why I suppose we are here, you are weighing here
an abridgement of the First Amendment to peoples right to know and that may be an obstruction
of -- but its a one thats kept this Country and made it great for some 200 years and youre
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 didnt obey that order and we are brought into Court and we are ended up being enjoined.
And I try -- I do think that when you come to that balance in face of the proof, in face
of the proof that exists here that decision is quiet clear that the First Amendment must
survive because they havent made out a case. >> John M. Harlan: Unless the Judge Gurfein
stated, they haven't used the same (Inaudible) >> William R. Glendon: I think essentially
that that Justice Harlan. Im not --
>> Potter Stewart: They did simply the matter of review, did they?
They considered the matter of -- of original findings.
>> William R. Glendon: Yes thats -- >> Potter Stewart: They were reviewing any
classification? >> William R. Glendon: They werent reviewing;
they were making an original determination. There wasnt -- Your Honor the circumstances
and the proof before them, it was not the kind of injury, the irreparable injury --
>> Potter Stewart: There is de novo hearing on whether or not the publication would show.
>> William R. Glendon: It was a de novo hearing. >> Potter Stewart: It wasnt reviewing any
classification by the executive department, was it?
They didnt consider that thats what they were doing.
>> William R. Glendon: No, it featured in the evidence Your Honor as to how the classification
got put on because that of course is the bedrock in their case.
>> Potter Stewart: Its basically irrelevant, isnt it?
>> William R. Glendon: No, because the Government says and you must listen, they say, its top
secret and thats it. >> Potter Stewart: I havent heard the Solicitor
General say that here today at all? >> William R. Glendon: Well thats my understanding
of the whole -- >> Potter Stewart: I asked him a question,
he said there were those in the Government who like to make that argument, but he was
not pressing it. >> William R. Glendon: Well its the argument
weve heard along that -- and you see that having classified a top secret, they move
from there to show no proof. >> Potter Stewart: No, it hasnt, the Government
has not in this Court made the argument that simply because its top secret, they are entitled
to an injunction, they made that argument? >> William R. Glendon: I was trying to say
that having classified the documents top secret. Thats the premise to their case.
They have not yet come in to this Court and proven they are top secret and yet they say
we cant publish them because they are top secret, isnt it?
>> Hugo L. Black: May I say as I understand the argument of the court below in the New
York Times seems to me that they have pursued, they have argued it on the premise that First
Amendment, freedom of speech can be abridged by Congress, if it desires to do so?
>> William R. Glendon: I did not make that argument, Your Honor.
>> Hugo L. Black: I understood you didn't, but I did not understand you making the other
argument or your colleague? >> William R. Glendon: No I do not --
>> Hugo L. Black: You talk about standards; Im not talking about standards.
First Amendments, Congress may no law abridging freedom of the press.
I understand you to say that Congress can make a law.
>> William R. Glendon: No Your Honor I do not say that.
>> Hugo L. Black: You do not say it? >> William R. Glendon: Never.
I do not say it. No sir.
I say we -- we stand Your Honor if I -- >> Hugo L. Black: I had misunderstood both
on you? >> William R. Glendon: No sir, we stand squarely
and exclusively on the First Amendment. >> Warren E. Burger: Thank you Mr. Glendon.
Mr. Solicitor General, you have about 12 minutes thereabout left.
>> Griswold: 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 and when I say future, I dont mean in the 21st Century, but I also don't 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 events, of these materials.
Now it is perfectly true that prior restraint cases with respect to the press are rare or
conceivably nonexistent. Im not ready to concede that they are nonexistent,
but I cant point to one now. I hadnt 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.
And 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 case.
The reason of course that there are not prior restraint cases with respect to the press
is that ordinarily you dont find out about it until its been published.
Reference has been made to the fact oh! There are leaks all the time, there are great
many leaks, but I would point out that there is also a very widespread respect of the security
classification system and its potentiality on the security of the United States.
Senator Fulbright did not publish this material. He sent it to the Secretary of Defense or
requested from the Secretary of Defense of 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 not appropriate to use it because it was classified top secret.
>> Thurgood Marshall: Mr. Solicitor General, what particularly words made at this point,
as I assume that there are not studies now are being made, in the future there will be
study made about Combodio, Louse (ph) you name it and if you prevail in this case, then
in any incidents that anybody comes about any of those studies, a temporary restraining
order will automatically issued, am I correct? >> Griswold: Its hard for me to answer the
question in such broad terms. I think that if properly classified materials
are improperly acquired and that it can be shown that they do have a -- an immediate
or current impact on the security of the United States that there ought to be an -- there
ought to be an injunction. Now I think it is relevant at this point --
>> Thurgood Marshall: Well wouldn't we then be, the federal courts be the censorship board
as to rather this judge -- >> Griswold: That's a pejorative way to put
it Mr. Justice. I dont know what the alternative is.
>> Thurgood Marshall: Thats what I thought --
>> Griswold: The -- >> Thurgood Marshall: -- a First Amendment
violation.[Laughter] >> Griswold: Yes, Mr. Justice and we are of
course fully supporting the First Amendment. The -- we do not claim or suggest any exception
of the First Amendment and we do not agree with Mr. Glendon when he says that we set
aside the First Amendment or that Judge Gesell or the two Courts of Appeals 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.
Now Mr. Justice Black, 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. And 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
that there are other parts of the Constitution which grants 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. Now, its been suggested that the Government
move very slowly in this matter, that the Time started publishing on Sunday.
Well actually it was on Monday which is pretty fast as the Government operates in terms of
the consultations that had to be made. The policy decisions it had to be made.
On Monday, the Attorney General sent a telegram to the New York Times, asked them to stop
and to return the documents. The New York Times refused and on Tuesday,
the United States started this suit. Its suggested that there had been full hearing,
everything has been carefully and thoroughly considered, but there is clear evidence of
haste in both records and 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 as to whether a preliminary injunction
should be granted. They were no intended to be full plenary trials,
but merely sufficient to show the probability of possible success.
There is 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 he on the record, 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. >> Potter Stewart: Im not sure I understand
what you said. The Court of Appeals relied on the assumption
that the District Judge would examine the evidence and that the District Judge refused
to do so -- >> Griswold: No.
That there had not been a full hearing with respect to this --
>> Potter Stewart: Now, which case were talking about now?
>> Griswold: Im talking about the New York Times, this case is in the Second Circuit,
and the Second Circuit sent it back to the Judge for rehearing with --
>> Potter Stewart: As I understood it, there was no claim that Judge Gurfein didnt consider
everything that was then before him that the new matter was brought to the attention of
the Court of Appeals for the Second Circuit. >> Griswold: No, the contrary Mr. Justice,
the full 47 volumes were offered Judge Gurfein --
>> Potter Stewart: Oh! I know that --
>> Griswold: -- and he refused to examine. >> Potter Stewart: Well he said he did not,
he didnt refuse to, he failed to. >> Griswold: No, Mr. Justice, he wouldnt examine
them. >> Potter Stewart: He said he didnt have time
to, but he did ask the Government to -- please bring forward the worst and thats --
>> Griswold: No, I think that really came at a later stage in that case.
>> Potter Stewart: And that new matter was brought to the attention of the Second Circuit
Court of Appeals. >> Griswold: Was 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, properly so. Everything about this case has been fronted.
That seems to me to be the most unfortunate and I would like to point out that the New
York -- >> Potter Stewart: Probably the reason is,
of course as you know Mr. Solicitor General that unless the constitutional laws that now
exists is changed, a prior restraint or publication by a newspaper is presumably unconstitutional?
>> Griswold: 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 and we have two important constitutional objectives
here which have to be weighed and balanced and made as harmonious as they can be.
But, it is well know that at the Times had this material for three months.
Its only after the Times has had an opportunity to digest it and it took them three months
to digest it, that it became necessary to be frantic about it.
It wasnt so terribly important to get it out and get it to the public while the Times were
working over it, but after that, now the Times finds it extremely difficult to except 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 can
see thats an extremely difficult question. And if it -- if the proper construction is
the one which Mr. Justice Black has taken for a long time and is well known, of course,
theres nothing more to be said, but our contention is that that is not the proper construction.
>> Potter Stewart: Well then -- and your brother counsel on the other side dont disagree with
you Mr. Solicitor General. They dont take Mr. Justice Blacks position,
at least for purposes of argument in this case?
>> Griswold: Very reluctantly, they were pushed into conceding that there might be some cases
where there could be those suggested in the opinion --
>> Potter Stewart: Mr. Glendon said that he thought judge Gazelle's standard was the correct
one. Mr. Bickel said that he was not in no claim
that the -- that theres an absolute prohibition of the prior restraint?
>> Griswold: Well, frankly I dont think its 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 and as I have
already said, we think the standard used by Judge Gesell is wrong.
>> Unknown Speaker: Do you think they are differ from the standards (Inaudible)
>> Griswold: Well I think -- Im sorry Mr. Justice.
>> Unknown Speaker: I say, do you think that the standards of Judge Gesell used were different
from those which Judge Gurfein used? >> Griswold: Im not sure what standard Judge
Gurfein used. Judge Gesell, 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
I contend that that is wrong. I believe and have sought to show in the closed
brief which is filed here that there are materials and 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 affects the security of United States vitality over a long period
and which will affect the problem of return of prisoners of war.
And I suggest that, however, it is formulating, the standard ought to be one which will make
it possible to prevent the publication of materials which will have those consequences.
>> Unknown Speaker: Its still not clear as to the basis for your view that the case should
be -- the District of Columbia case should be remanded.
I got it originally from your papers that you thought that should be remanded in order
to have the fuller hearing that the Court of Appeals ordered them lacking before (Inaudible)
and this morning you --