by Neil Sheehan
Q. Then would you repeat the words so that I will have them in mind?
A. So prejudice the defense interest of the United States, or result in such irreparable injury to the United States as would justify restraining the publication.
Q. Then that would not cover the simple deaths, say, of a hundred or two young men.
A. Your Honor, that is a hard case you put, obviously. 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.
Q. We have a lot of things under seal that I for one have not seen. I have seen some of it, but I have not seen all of it.
A. I am going to address myself to those, Your Honor, and I am going to point out as best I can within the limits here, as did other courts, and the Government has not yet brought anything like that case to Your Honors, nothing like that. What we have heard, your honor, is much more in the nature of conjecture and surmise.
Chief Justice Burger:
Q. Can anyone know in any certain sense 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 don’t know anything about in the release of war prisoners, and that sort of thing? How does a government meet the burden of proof in the sense that Judge Gesell laid it down? That does not bring any battleships to the outer limits of New York harbor, or set off any missiles, but would you say that it is not a very grave matter?
A. Your Honor, I think if we are to place possibilities or conjecture against suspension or abridgement of the First Amendment, the answer is obvious. The fact, the possibility, the conjecture or the hypothesis that diplomatic negotiations would be made more difficult or embarrassed does not justify, and this is what we have in this case, I think, and is all we have does not justify suspending the First Amendment. Yet this is what has happened here. Conjecture can be piled upon surmise. Judge Gurfein used the words up in New York, and I am sure used it respectfully, but he said when there is a security breach, people get the jitters. I think maybe the Government has a case of the jitters here. But that, I submit, does not warrant the stopping the press on this matter, in the absence of a showing.
I would like to turn to that, because this matter, as I don’t have to say, does not come undeveloped before Your Honors. Two fine District Court judges, two fine Courts of Appeals have considered this, and in each I think it is fair to say even in the New York case, the Government did not meet its burden. So it says to us, but one more time, just one more time. This is where I was a moment ago when I said that Judge Robb and Judge Robinson agreed to give them a chance.
Now, we had a hearing in the District of Columbia, and I would like if I may to 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 I know it is a sincere representation by General Griswold, but on a representation that if we are given some more time, maybe we can find something. Here is what the Government said 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.
The Government was accorded the fullest hearing that it wanted. We started at the unusual hour of 8 o’clock in the morning. The Government’s case proceeded through the luncheon hour. We cross-examined as we felt was necessary. The Court had plenty of time to consider the matter. He delivered, I think you will agree, whether you agree with his result, a finely reasoned opinion, so there was no rush and no pressure. Then the matter went up to the Court of Appeals, and the Court of Appeals had a session of some three hours the next day. I might say, too, and I think this is perhaps important, there has been no restriction on the Government’s latitude, because they did have these in camera hearings which frankly were very difficult from our point of view to deal with, but they did have them, and they had an in camera hearing in the Court of Appeals. So to say now that we need more time, I think, does not measure up to the other side of the equation which you are being asked to consider, and that is to restrain two newspapers while others are publishing from giving their readers the news. It is, of course, their readers that we feel, and I think properly, whose rights are involved, too, their right to know. In talking about currency and immediacy, there is now involved in this country—the country is engaged in an 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.
Senator Fulbright, as I am sure you are all aware, has been trying for some two years, I understand, to get these documents. I think it is of interest here, because we are dealing with this case and these documents. I think classification is important here in your consideration of these cases, because these documents were classified Top-Secret. They were classified Top-Secret because some unknown individual who is not presented to the court, whose subjective judgment could not be explored, despite the district judge asking that he be brought in—perhaps there was a good reason, we don’t 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 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 requests to get these documents so that Congress could make the laws, and perhaps the public would be informed.
Chief Justice Burger:
Q. Does the record tell how long The Post has had these documents in its possession?
A. It does not show, Your Honor.
Chief Justice Burger:
Q. Does it show, if you know, how long The New York Times had the documents in their possession before The Post got them?
A. The record in our case does not show that, Your Honor, but I have read, and perhaps these gentlemen could answer better than I, I understood they had them in their possession for some months, a month or two.
Chief Justice Burger:
Q. I heard it mentioned somewhere three or four months.
A. Yes. It is not in the record, but that is my best answer.
After this proceeding was brought, and I think again it is part of the significance of this proceeding, and during the course of it, although starting out as a 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 is some sort of admission that the original classification and the original attitude towards them was wrong.
Chief Justice Burger:
Q. It could be that something classified in 1965 properly would no longer be subject to classification, or even 1969 or 1970.
A. That is correct, Your Honor, and furthermore some of these documents which were classified go back of course to 1945. The documents are that ancient. The document itself is entitled “The History.” It is called a history, and from what I have seen of it, that is what it is.
The Court in our case had before it, and Your Honors will see the evidence of which I am aware, and there apparently has been today additional references made to the documents, but it is a fact, and I think it is a significant fact that the judge there asked the Government to show him 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. If you accept them, they would be worried, but we are talking here about proof.
Chief Justice Burger:
Q. Was there an order at any time to produce all of the documents in the possession of either of the newspapers for examination?
A. There was not, Your Honor.
Chief Justice Burger:
Q. Was there a request for such an order?
A. The Government
made such a request; and because of the concern that the newspaper has as to the protection of its source, the documents we were advised would indicate the source, the documents that we had would indicate the source.
Chief Justice Burger:
Q. Who denied that request, the district judge?
A. Yes, and here is how he resolved it.
Chief Justice Burger:
Q. He let that override the Federal rules of civil procedure on discovery?
A. Here is how he resolved it, Your Honor. I think he did it very fairly. He said if you are not willing to produce the documents—we do not have all of the documents—but if you will not produce all of the documents because of your claim of First Amendment source protection, then I will assume that you have all of the documents, and therefore the Government can show me any document, and I will accept that as being in your possession for the purposes of the case. I think that under the circumstances that was 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 client’s assertion, which is a substantial and I think a valid assertion that a newspaper is entitled to protect its source. So that is the way it was, Your Honor.
Chief Justice Burger:
Mr. Glendon, I recall an ancient doctrine of equity about people who come into equity with certain burdens on them. Doesn’t it strike you as rather extraordinary that in a case which largely centers on protection of sources the newspapers are refusing to reveal documents on the grounds that they must refuse in order to protect their sources?
A. Your Honor, I don’t understand that that is the issue here.
Chief Justice Burger:
I don’t know about the issue. It is in and there are certain standards about this case. This is an equity proceeding, people coming into equity with clean hands, which is one of them, and prepared to do equity.
A. We did not come into equity. The Government came into equity.
Chief Justice Burger:
You were brought in.
A. We were brought in kicking and screaming, I guess.
Chief Justice Burger:
Q. You are now in the position of making demands on the First Amendment. You say the newspaper has a right to protect its sources, but the Government does not.
A. I see no conflict, Your Honor. I see no conflict at all. We are in the position of asking that there not be a prior restraint in violation of the Constitution imposed on us, and that equity should not do that. We are also in the position of saying that under the First Amendment we are entitled to protect our sources, and frankly, I just do not find any conflict bearing on it.
The record shows, and I think this is important in Your Honor’s consideration, too, we are, as I said, talking about allegedly top-secret documents, and the record shows that these nomers of secret and top secret are honored perhaps in the breach in Washington, in the way the Government does business, and in the way it perhaps has to do business. But it is certainly true that there is massive overclassification 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 may be classified in one fashion or another, in fact, perhaps 1 per cent or 2 per cent or 5 per cent of it really is classified. I think that is 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 is not quite the word, but they are naturally in opposite corners—the press is trying to get as much news as it can and the Government, particularly where it may be embarrassing or where it may be overly concerned or may feel it is embarrassing or may, in Judge Gurfein’s words, have the jitters, is trying to prevent that sometimes. On other occasions, the Government engages itself in leaks, because some official will feel that in the public interest it is well for the public to know, and that overrides any particular judgment of security or classification.
The record, Your Honors will find, is replete with instances where leaks of confidential, secret and top-secret material have been given to the press, or the press has found them out and published them, and of course nothing has happened. I think that is significant because here this is the sort of thing we feel we are talking about. As far as classification itself is concerned, and you will remember the documents that we are talking about are a mixed bag.
Justice White:
Q. Mr. Glendon, wouldn’t you be making the same argument if your client had stolen the papers?
A. I don’t think the source of how we obtained them features in this case.
Justice White:
Q. Then it would not make any difference? The leak aspect has no relevance to the case, either.
A. I think it is relevant as background.
Justice White:
Q. Then it would be relevant if you stole them? Then you would 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 your publication of them.
A. I do not think that the manner—
Justice White:
Q. Then one is an irrelevant as the other?
Q. It is not customary in the Government to leak 47 volumes at a time, is it?
A. Your Honor, that is certainly true. It is certainly not customary. The size here is different, but I think you will find, Your Honors, in the affidavit that we have attached, and the exhibits that we have attached to our affidavits, indicating secret stories, or allegedly secret stories, based on secret information, that there is probably more secret information there than you will find in these documents, if you examine them.
Q. What basis did it have on this case?
A. I think it is simply a matter of background, Your Honor, an atmosphere to show that this is not an untoward or unknown situation. When we hear about how our foreign allies or our foreign friends will be shocked or appalled or anything else, it is simply not so. This happens. This is one of the facts of life.
I was starting to refer to a district judge telling the Government to show, which was what he was supposed to do, and that is 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—let us look at what we are talking about, instead of dealing just with abstractions and conjectures. This was on the so-called secret transcript, and I am not going to avert to it, other than to say that the one document that the Government produced in response to this invitation set forth certain options with reference to the war, and I will not 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 the sort of proof that we have been faced with, and this is the will ‘o the wisp that we have been chasing.
Justice Blackmun:
Q. Then Mr. Glendon, I come back to you with the same inquiry I made of Professor Bickel. At least it was close enough to persuade one judge of the Court of Appeals to disagree with what you have just said.
A. Your Honor, that is true. I would like to revert to a fact that the other members of the Court of Appeals felt constrained, after they read that particular dissent to just yesterday issue an amendment to their opinion in which they reiterated that they disagreed with Judge Wilkey, which to me was some indication of the strength and depth of their feeling. But Your Honor is right. Judge Wilkey felt, and I say to Your Honor, respectfully, that is not based on the record. There is nothing in the record that I know of, and I think I know the record as far as it has been disclosed to me, and perhaps there was some new material this morning that was not, but as far as the record has been disclosed to me, there is absolutely nothing to justify that statement, and I say the Court of Appeals felt strongly enough about it to issue another statement, to issue an amendment in which they specifically said they disagreed.
Just
ice Stewart:
Q. The issues in this case then really are factual issues, are they not? As I understand it, and this was my understanding initially—I have not heard anything really to modify my understanding—you agreed that an injunction could issue despite the First Amendment if it was shown by the Government that there was something here the disclosure of which would directly cause a grave, irreparable and immediate danger to the country. You agreed that an injunction could issue. You just simply say they have shown nothing of the kind. Isn’t that right?
A. They have shown nothing of that kind, or by any other measurable standard that I understand could possibly be involved in this case.
Q. So it is a matter of fact.
A. Take the top-secret definition or anything else. But there is something behind this, too, which I think perhaps is a legal issue, and that is the scope of the review here.
Q. The scope of the review of what?
A. Review of the findings of the district—
Q. Of fact, the findings of fact under rule 52 (A), isn’t it?
A. That is right.
Q. These are factual issues.
A. There is one legal question perhaps I will come to later, and that is the utility of an injunction here.
Justice White:
Q. I take it then you do assert that there is not a single document in the 47 volumes which is now entitled to a top-secret classification as defined in the executive order?
A. No.
Q. You said as tested by the top secret standard, or any other, there has been no showing made?
A. Any other standard, I am talking about. I think that the standard is reasonably clear here, but whether you use words such as “gravely prejudicial” to the United States, or “irreparably injure the defense” of the United States, whatever the standard may be.
Q. Assume the standard, as made more specific by the tests of the top secret classification—assume that was the standard. You would say that it has not been satisfied in this case?
