Pentagon Papers

by Neil Sheehan

  I would submit, secondly, that while error is always possible, Judge Gurfein and the Court of Appeals for the Second Circuit, which affirmed him on the record that he had before him, and Judge Gesell, in the Court of Appeals here, all of those judges cannot have been that wrong.

  Justice Blackmun:

  Q. Professor Bickel, this is not your case, but reading from Judge Wilkey’s dissent, “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 to negotiate, as honest brokers, between would-be belligerents.” I take it that you disagree fundamentally with that statement?

  A. Not entirely, Mr. Justice Blackmun. For example, the death of soldiers—I would disagree that impairment of diplomatic relations can be a case for prior restraint, I would say, even under a statute.

  I would not disagree that the death of soldiers, as in the troop ship, or as in the example that Chief Justice Hughes gave. 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 yet be shown by the Government, nothing that any of these judges have seen is related by a direct, causal chain, to the death of soldiers or anything grave of that sort. I have heard it, and everything that I have read—what characterizes every instance in which the Government tries to make its case factually is a chain of causation, whose links are surmise and speculation, all going toward some distant event, itself not of the gravity that I would suggest.

  Q. You know these records better than I do, but then going back to Judge Wilkey, he says, “But on careful, detailed study of the affidavits and evidence, I find the number of examples of documents which, if in possession of The 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 with what he seems to say?

  A. I beg your pardon, Mr. Justice. I am not as familiar as I should be with The Washington Post case. I have thought that Judge Wilkey dissented on the ground that he would like more evidence to come in. 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 that language does not quite communicate to me what the standard is, and I doubt that it is the narrow standard that I would contend for.

  Depending on the standard that he has in mind, he is either wrong about his standard, or seven judges disagreed with him. I am sorry. I am not sufficiently familiar with The Washington Post case.

  Justice White:

  Q. Professor, your standard that you are contending for is grave and immediate, or not? Is that too general for you?

  A. The standard that I would contend for, and the difficulties of words are simply enormous—one has to bring into one’s mind and image of some event and try to describe it. The standard that I would contend for would have two parts to it. 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 that was saved in Hiribayashi, for example, and a prior restraint being imposed pursuant to a welldrawn statute, which defines the standard and the case. I would demand less of the statute than I would demand of the President.

  But the standard, in general, that I would have in mind, would, at one end, have a grave event—danger to the nation. Some of the things described in the description of top-secret classification in the Executive Order that the Solicitor General read off, I think, would 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 link between the fact of publication and the feared danger, the feared event, be direct and immediate and visible.

  Justice White:

  Q. I take it then that you could easily concede that there may be documents in these 47 volumes which would satisfy the definition of “Top-Secret” in the executive order, and nevertheless, would not satisfy your standards?

  A. That would be chiefly for the reason that, as is notorious, classifications are imposed—

  Q. No, my question was this. Let us concede, for the moment, that there are some documents that are properly classified Top Secret. You should say that does not necessarily mean that your standard is satisfied?

  A. That is correct, Mr. Justice. I would say that—

  Q. I have not read anything in any of your documents or in any of these cases which the newspapers suggest for a moment that there is no document in these 47 volumes which satisfies properly the definition of top secret.

  A. I don’t know about that.

  Q. You do not deny that, do you?

  A. I have no knowledge. I have never been near the documents, Mr. Justice.

  Q. But your position must be then that even if there is a document or so, none of them satisfies your standard.

  A. I would say that today. If asked that question on 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 The Times. I am fairly certain by now, Mr. Justice, after all of 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 earlier ones that I have not 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 there is nothing in there that would meet my standards for a statute or independent executive action, because if there were, it surely should have turned up by now. It cannot be after, I gather the Solicitor General had the same experience yesterday afternoon, that I saw Judge Gurfein having. Please show me. Now, which are the three, which are the five, which are the ten? Which is the most important to these? All that one ever got, all that I have ever heard have been statements of the feared event in terms of an effect on diplomatic relations. If it is a military matter, then it was in terms of the addition of a possible cause to a train of causal factors, to train of events that is well on the rails as is, and propelled by sufficient other facts. That sort of statement is the only thing we have heard, and I would submit that that does not meet any possible First Amendment standard. It does not meet it either in the statement of the seriousness of the event that is 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 area, so that what finally causes the ultimate event becomes impossible to say which the effective cause was. The standard I would propose under the First Amendment would not be satisfied by such things.

  Justice Stewart:

  Q. Your standard is that it has to be an extremely grave event to the nation and it has to be directly proximately caused by the publication.

  A. That is exactly correct.

  Q. I gather then that your basic argument with the statutory or regulatory definition of “top-secret” is with the word “could,” because that definition says “unauthorized disclosure of which could result in” and so forth.

  A. Yes, I was addressing myself only to the events.

  Q. You would insist that it would probably result?

  A. I would insist that for purposes certainly of any action in the President’s inherent power, which is the case before us.

  Q. Mr. Bickel, it is understandably and inevitably true that in a case like this, particularly when so many of the facts are under seal, it is necessary to speak in abstract terms, 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 100 young men whose only offense had been that they were 19 years old and had low draft numbers. What should we do?

  A. Mr. Justice, I wish there were a statute that covered it.

  Q. Well there is not. We agree, or you submit, and I am asking in this case what should we do.

  A. I am addressing a case of which I am as confident as I can be of anything that Your Honor will not find that when you get back to your chambers. It is a hard case. I think it would make bad separation of powers law. But it is almost impossible to resist the inclination not to let the information be published, of course.

  Q. As you know, and I am sure you do know, the concern that this Court has term after term with people who have been convicted and sentenced to death, convicted of extremely serious crimes in capital cases, and I am posing you a case where the disclosure of something in these files would result in the deaths of people who are guilty of nothing.

  A. You are posing me a case, of course, Mr. Justice, in which that element of my attempted definition which refers to the chain of causation—

  Q. I suppose in a great big global picture this is not a national threat. There are at least 25 Americans killed in Vietnam every week these days.

  A. No, sir, but I meant it is a case in which the chain of causation between the act of publication and the feared event, the death of these 100 young men, is obvious, direct, immediate.

  Q. That is what I am assuming in my hypothetical case.

  A. I would 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—

  Q. You would say the Constitution requires that it be published, and that these men die, is that it?

  A. No, I am afraid that my inclinations to humanity overcome the somewhat more abstract devotion to the First Amendment in a case of that sort. I would wish that Congress took a look to the seldom used and not in very good shape espionage acts, and cleaned them up some so that we could have statutes that are clearly applicable, within vagueness rules, and what not, so that we do not have to rely on Presidential powers. But the burden of the question is do I assume that the event has to be of cosmic nature.

  Q. That is the question.

  A. No, sir. The examples given by Chief Justice Hughes himself are not. A troop ship is in a sense that 100 men or the location of a platoon is in a sense that 100 men. I don’t assume that. I do honestly think that that hard case would make very bad separation of powers law.

  Q. Let me alter the illustration a little bit in the hypothetical case. Suppose the information was sufficient that judges could be satisfied that the disclosure of the link the identity of a person engaged in delicate negotiations having to do with the possible release of prisoners of war, that the disclosure of this would delay the release of those prisoners for a substantial period of time. I am posing that so that it is not immediate. Is that or is that not in your view a matter that should stop the publication and therefore avoid the delay in the release of the prisoners?

  A. On that question, which is of course a good deal nearer to what is bruited about, anyway, in the record of this case, I can only say that unless—which I cannot imagine can be possible—the link of causation is made direct and immediate, even though the event might be 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. Any one 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. Justice, 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.

  Q. I get a feeling from what you have said, although you have not addressed yourself directly to it, that you do not weigh heavily or think that the courts should weigh heavily the impairment of sources of information, either diplomatic or military intelligence sources. I get the impression that you would not consider that enough to warrant an injunction.

  A. In the circumstances of this case, Mr. Justice, I think, or I am perfectly clear in my mind, that the President, without statutory authority, no statutory basis, goes into court, asks an injunction on that basis, that if Youngstown Sheet and Tube Co. v. Sawyer means anything, he does not get it. Under a statute, we don’t face it in this case, and I don’t really know. I would have to face that if I saw it. If I saw the statute, if I saw how definite it was—

  Justice Douglas:

  Q. Why would the statute make a difference, because the First Amendment provides that Congress shall make no law abridging freedom of the press. Do you read that to mean that Congress could make some laws abridging freedom of the press?

  A. No, sir. Only in that I have conceded, for purposes of this argument, that some limitations, some impairment of the absoluteness of that prohibition is possible, and I argue that, whatever that may be, it is surely at its very least when the President acts without satutory authority because that inserts into it, as well—

  Q. That is a very strange argument for The Times to be making. The Congress can make all this illegal by passing laws.

  A. I did not really argue that, Mr. Justice.

  Q. That was the strong impression that was left in my mind.

  A. I replied to the Chief Justice on a case that arose without a statute, and tried to distinguish, because it is crucial 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 don’t have to, Mr. Justice.

  Chief Justice Burger:

  Q. I have one question which is prompted by this exchange. Generally speaking, there are, as I understand it, no statutes 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, the claim of the newspaper is that the First Amendment protects them from revealing their sources even to a grand jury in the investigation of criminal matters, because otherwise the newspapers’ sources would dry up. That is generally the thesis of the press, is it not?

  A. There are some cases that are on the Court’s docket, as you know, Mr. Justice, for next fall. One of them with which I am 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 does not 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 Mitchell’s regulations themselves provide, which were issued after the Caldwell case started, in cases where the Government has not shown that it is 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 communications 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 the theory runs they would dry up if there were no protection of confidentiality, there would be a diminished flow of news.

  Chief Justice Burger:

  Q. Yes, but the thing is that the newspapers and newspaper reporters claim for themselves the right which this argument now would deny to the Government.

  A. Mr. Justice, I know there is an appearance of unfairness of 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 c
ase like Caldwell does The New York Times nor does the reporter claim something for himself, but rather the claim is made in order to vindicate the First Amendment and those interests which that great document serves. Thank you.

  Q. Thank you. Mr. Glendon.

  Oral Argument by William R. Glendon, Esq., on Behalf of Respondent (The Washington Post)

  Mr. 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 us who have been involved in this case over the last intense week, that some more time is needed while the First Amendment is suspended. We first faced 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, of course, as was its right, promptly went up to the Court of Appeals, and in an extraordinary late session—everything has been late, I may say in this case, late hours, anyway—the Court of Appeals, 2 to 1, Judges Robb and 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 prior restraint against the press.

  Now, the Court of Appeals stated in its order that it would send it back, send it to the District Court, and the District Court would try it to determine whether the granting of an injunction for the publication of the material would so prejudice the defense interests of the United States or result in such irreparable injury to the United States as to justify the extraordinary relief that was asked, to wit, a prior restraint.

  Justice Stewart:

  Q. Before you proceed, Mr. Glendon, do you raise that as the proper test?

  A. I think that is the proper test, Your Honor, yes. That is the test that we tried the case on, sir, and I think the implications of the words may require some development, and I am sure there will be arguments as to exactly what those words mean, but that is the test we tried the case on.