H-Bomb Case

Judge Warren Decides

Here is my abbreviated version of the decision of Judge Robert W. Warren:1

Judge Warren begins: Welcome to the United States District Court, Eastern District of Wisconsin. Both the defendant magazine and plaintiff government appeal to important legal precedents and are supported by affidavits2 from impressive experts. The defendants invoke the right to free speech and press guaranteed by the First Amendment and the precedent set in New York Times v. United States 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971) which the U.S. Supreme Court allowed the Times to publish classified secrets known as the “Pentagon Papers.” You are supported by affidavits from the American and Wisconsin Civil Liberties Unions, the Federation of American Scientists and the Fund for Open Information and Accountability. They all claim Morland’s information is not secret and presents no special threat to national security.

Warren continues: On the other hand, the government invokes their right to prevent publication of information threatening national security established in Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931) and the Times case if it presents a “grave, immediate, direct and irreparable harm.”3 Three presidential cabinet members and scores of nuclear weapons experts have filed affidavits testifying that some of Morland’s information in fact is not known outside the community of nuclear weapons scientists,4 information that if published might result in grave, direct, immediate and irreparable harm to the national security of the United States.

Warren concludes: I am granting the government’s petition for an injunction against publication of Morland’s article, even though this is the “first instance of prior restraint against a publication in this fashion in the history of this country…” I do so for four main reasons:

(1) Although the article probably does not provide a “do-it-yourself” guide to the H-bomb, since “one does not build a hydrogen bomb in the basement,” it could possibly help a medium-sized nation move faster in developing a hydrogen weapon. “Once its basic concepts are learned, the remainder of the process may easily follow.”

(2) The general public has no need to know technical details of the making of an H-bomb.

(3) This case is unlike the Times case in three significant ways. First, the Times case involved mere historical data relating to events three to twenty years past. Second, in the Times case, the government failed to prove any serious danger to national security existed; rather, the evidence showed only that publication would be embarrassing to certain government officials. Third, this case involves a federal statute authorizing the secrecy of the information.

(4) Most importantly, there is a “disparity of risk” between the two options. A mistake in ruling against the United States could pave the way to thermonuclear annihilation. A mistake in ruling for the United States violates cherished rights. “Faced with a stark choice between upholding the right to continued life and the right to freedom of the press, most jurists would have no difficulty in opting for the chance to continue to breathe and function as they work to achieve perfect freedom of expression.” In today’s world, publishing technical information about the H-bomb is like publishing information about troop movements or locations in the theater of war. Therefore, the government is justified in preventing publication of the article.5

Notes

1 United States v. Progressive Inc., Erwin Knoll, Samuel Day, Jr., and Howard Morland 467 F.Supp. 990 (W.D. Wis 1979), appeal dismissed mem., 610 F2d. 819 (1979). The lawsuit was originally presented to Judge James E. Doyle of the Western District of Wisconsin since Madison is in Wisconsin’s Western District. However, Doyle recused himself under 28 U.S.C. §455(a) (1976) because of a potential conflict of interest. Jonathan Entin reports that “Although Doyle offered no explanation, [his] association with The Progressive dates to his earliest years of politics.” See Entin, p. 543, n. 29. Doyle was the sole sitting judge in the Western District at the time so it had to be transferred to the Eastern District of Wisconsin and was assigned to Judge Warren, a conservative Republican appointed by Richard Nixon the day before Nixon resigned from the Presidency. The decision is reported as Western District because of this genesis. Judge Warren actually issued three decisions. At the initial hearing on March 9, Warren issued a temporary injunction granting the government’s petition for one week at which time there would be another hearing. However, the re-hearing was postponed another ten days to March 26 by mutual agreement to allow further preparation. At the March 26 hearing (which is the basis for the comments I use in the text), Warren granted a preliminary injunction against publication of the article after attorneys for The Progressive refused Warren’s offer of a five-member panel of mediators. A third hearing held between March 9 and March 26, now reported at 486 F. Supp. 5 (W.D. Wis. 1979), was held in camera (open only to those with national security clearance) and denied the defendant’s petition for dismissal.

2 An affidavit is a written statement of fact sent to the court by a third party interested in the case. To be legitimate, it must be confirmed by oath in the presence of an appropriate official, such as a notary public.

3 Actually, the complicated Times case was based in a brief three paragraph per curiam decision stating only that the government failed to overcome the presumption against prior restraint. In fact, all nine justices filed a separate opinion, with six justices concurring and three dissenting, with some joining in each others’ concurrences and dissents. Justices Black, Douglas, Brennan, Stewart, White and Marshall concurred, with Black and Douglas joining in each other’s opinions as well as did Justices Stewart and White. Chief Justice Burger and Justices Harlan and Blackmun dissented, with Burger joining Harlan’s opinion. Two of the concurring opinions used language close to the phrase that later was adopted by commentators and the Court itself in Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 833 (1978) and Nebraska Press Association v. Stuart, 427 U.S. 539, 545 (1976) as the majority opinion. Stewart granted that publication was not in the national interest, but could not conclude that, “disclosure of [the Pentagon Papers] will surely result in direct, immediate, and irreparable harm to our nation or its people.” (at p. 730). Justice Brennan argued that prior restraint was not justified since the government failed to show “publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea.” (at p. 726-7).

4 The three secretaries were James Schlesinger, Secretary of Energy (responsible for enforcement of the the Atomic Energy Act), Cyrus Vance, Secretary of State (responsible for domestic security), and Harold Brown, Secretary of Defense (responsible for foreign defense). (Their affidavits are reprinted in Bagdikian, p. 23.) Warren singled out two affidavits as particularly influential in his decision: Dr. Hans A. Bethe, a top-notch nuclear expert, and Dr. Jeremy Stone, writing as executive director of the Federation of American Scientists. Stone wrote an article defending his affidavit that summer, see Jeremy J. Stone, “Giving Away the Secret of the First Amendment,” The Quill (June 1979), pp. 27-28, Interestingly, Bethe was involved in a 1950 case in which the government censored an article he wrote for Scientific American. The editors reluctantly agreed to the Atomic Energy Commission’s demand that they delete certain portions of Bethe’s article and destroy all 3,000 copies of the original article. Gerard Piel, the publisher, wrote in support of The Progressive, see New York Times, March 26, 1979, reprinted in The Progressive (May 1979), p. 17. Bethe, on the other hand, supported the government, see The Progressive (May 1979), p. 40.

5 Judge Warren offered the Progressive an opportunity to work with the government to work with a mediation panel to come up with an article acceptable to both parties. The Progressive declined. Bernard T. Feld, a nuclear physicist at MIT wrote an article proposing the compromise, “Just Two Deletions and Let the Progressive Publish,” The Quill (June 1979), pp. 29-30.