The H Bomb Case

The Movement to Overturn the Court’s Decision

In this section I present an abbreviated account of the events and individuals involved in the process of turning public opinion against Judge Warren’s decision and the government’s censorship of the H-Bomb article. Erwin Knoll, of course, led the charge:

Erwin Knoll begins:1 We are appealing Judge Warren’s decision to the Seventh Circuit Court of Appeals. We agree with Albert Einstein, who said back in 1947, “Through the release of atomic energy, our generation has brought into the world the most revolutionary force since pre-historic man’s discovery of fire. This basic power of the universe cannot be fitted into the outmoded concept of narrow nationalism….There is no possibility of control except through...an informed citizenry.”2 In 1958 the House Committee on Astronautics and Space exploration cited the Atomic Energy Act as an example of “official vigilance carried to dangerous extremes….However well-intentioned, however loosely or intelligently enforced, such a law is a latent danger to the life of this democracy.”3 Judge Warren is wrong because the Times case clearly indicates the grave, immediate, direct and irreparable harm must not merely be possible, but rather, it must be inevitable, and the government has not shown that publishing this article will certainly hurt our national security since all the technical information is already available to the public. It is silly to suppose a small-circulation magazine with little money like ours can find out a “secret” unavailable to a wealthy foreign government.

Knoll continues: We will win on appeal despite the government’s hysteria about this case. Consider their paranoia: We cannot send the article for expert review without their prior approval, which they intentionally delay. All our material must be pre-approved by the government, and they take this to ridiculous lengths by, for example, deleting references to popular magazines and encyclopedias in documents supporting our claims. They deny the public and the defendants (Knoll, Day and Morland) access to court proceedings and decisions since they lack “security clearance.”4 They concoct new legal conceptions—like the “born secret” doctrine5 and the “technical information is not free speech” doctrine6—in order to silence and distract discussion of this important topic. Is this the American way?7

Sam Day was right there with Knoll:8 Technical information about how an H-bomb works is relevant to the public debate on nuclear weapon proliferation. For instance, on the issue of calling to halt to nuclear testing, [Morland] found out that the way the weapons are constructed and the type of material used provide valuable insights into determining if and why testing should continue. The designers contend that weapons must be periodically tested…in order to be sure they will work if they are needed. Why should they fail? Because they might corrode. Why should they corrode? Sorry, that’s a secret. Well, how can the public make an informed decision about this if that information is secret? Another instance: An environmental group in Hawaii has taken the Navy to court demanding an environmental impact statement on the proposed building of a nuclear weapons storage facility near the Honolulu airport. They want to know if it’s safe. The Navy has responded by saying the Atomic Energy Act’s security laws prevent them from answering that question. So how are Hawaiians to know if the storage is safe or not?

Over the summer, nuclear weapons experts began to weigh in:

Theodore Postel: As an experienced nuclear scientist, it is my opinion there is no danger in publishing Morland’s article. All his data is already available in the public domain.9 In fact, Morland is not the problem in this case; rather, the government is since it is confirming Morland’s design and guesses about the H-bomb.10 The government should have ignored the article rather than confirmed it!11

Ray Kidder: As a nuclear weapons designer, I can testify that Morland’s article does not contain any information that is not deducible from information in the public record or that significantly influences national security.12 In fact, he doesn’t even get the H-bomb idea quite right! His formula contains an error that makes it useless to anyone attempting to design an H-bomb.13

Investigative reporters got into the act:

Joe Manning:14 I’m a reporter for the Milwaukee Sentinel with no more science than a botany class in college. But in just one week of research using more than twenty resources in public libraries in Milwaukee and Waukegan, I found the Teller-Ulam Idea. It is “an arrangement that compresses the fuel through the use of soft x-rays from the atomic bomb blast reflected off the bomb casing wall.”

Evidence was found of other so-called nuclear “secrets” out in the open:

Dimitri Rotow:15 The public library of the Los Alamos Scientific Laboratory has on its open shelves a declassified 29-page government report that reveals even more technical information about H-bomb manufacture than Morland’s article. It gives yield, weight and configurations of actual bombs, even explains how to fill the empty spaces with foam, and it has been available for four years in a library visited in the past two years by 590 foreign visitors from 52 different countries.

Attorneys for The Progressive:16 On the open shelves of a public library in Sweden there is a declassified Soviet document containing the so-called “secret” we seek to publish. It is no secret in America or anywhere else!

The press and journalists began to reverse their earlier support for the government’s position.

Sidney Lens:17 This is a transparent attempt to play on American fears in order to impose press censorship. Just as Richard Nixon invoked the magic words “national security” to prevent Americans from learning of his Watergate crimes, so the Carter Administration invokes the specter of the H-bomb as a means of muzzling criticism of a major part of its military policy.

Robert Friedman:18 In doing research for an article on this case, I have stumbled onto what I believe to be the ‘secret’ of the H-bomb.”

Ben Bagdikian:19 Former President Gerald Ford has said that thanks to plutonium in nuclear reactors, by 1985 there will be 40 countries that possess enough plutonium to make thousands of hydrogen bombs each year. If the former president is correct, then how is it possible that 40 countries will have enough of the crucial element to make thousands of hydrogen bombs in six years while [government witnesses] say the Progressive article will shorten the time by “decades”? Of course, possession of plutonium, by itself, is not the same as constructing a bomb. But the government has admitted that the mechanics of the bomb are determinable…in the open literature and by sophisticated speculation by trained scientists and engineers. Any country with a desire to make a hydrogen bomb is much closer to it with some plutonium and a clever scientific community than it is with a subscription to The Progressive.

Milwaukee Journal:20 Although explicit instructions and diagrams on “How to Build your Own Atomic Bomb” were published in…TakeOver in July, 1974.

New YorkTimes:21 The government’s charges are “lame in both logic and law. The shouts of alarm are more dangerous than the danger they describe. The government is doing its best to intimidate the Milwaukee judge and to incite the public against the magazine.”

St. Louis Post-Dispatch:22 “Although the danger from H-bombs is real enough, it will not be met by stifling a free press but by striving for disarmament.”

Minneapolis Tribune:23 “If a magazine writer can figure out the bomb from interviews and non-classified documents, why cannot physicists and engineers and embassy attaches? Five countries have the bomb already. Does the government imagine that other nations will begin to wish for bombs of their own, and then get the know-how, simply by browsing American newsstands?”

Madison Capital Times:24 ”The Progressive is not alone in this battle. The battle is being fought for all of us. The Progressive is seeking to sustain the First Amendment’s unequivocal guarantee of a free press from government restraint.”

Miami Herald:25 In the words of a 1950 report prepared by the Newspaper Editor’s Committee on Atomic Information in collaboration with the Bulletin of the Atomic Scientists—“There is no hydrogen-bomb secret….When it comes to the H-bomb’s basic scientific facts, the fact is that there are no facts to hide.”

Nat Hentoff: Those who fear this case may be lost in the courts miss the point. Free speech is not negotiable—imagine our founding fathers saying, “This is not the right time. The royal Governor, the courts are all against us. Next generation, next century, when the climate improves, then it will be right to fight for a free press.”26 The government can slippery indeed while trying to ensorcel the courts with chants of secrecy. There was a time, during the attempt to bury the Pentagon papers like so much nuclear waste, when a judge, in camera, asked the Government to tell him the 10 most damaging secrets in those documents. Gravely, a myrmidion of the Justice Department gave him the list….It turned out that every single one of the secrets had been previously published—before any newspaper had received the Pentagon Papers.27

Wisconsin citizens began voicing their support for The Progressive too.

Amy M. Branks of Janesville:28 “I am a high school senior who has been following the press’ accounts of your present confrontation. I am thoroughly behind your principles in the H-bomb matter, and I wish to donate $15 to your campaign for the right to print the story.”

Robert R. Jurewicz of Milwaukee:29 “In 1946, while a junior in high school, I wrote a paper on how the first atomic bomb was built, how it worked, and how it was detonated….This supposedly top secret information was all available at the Milwaukee Public Library. It took four days to assemble the information….None of this top secret information was released until the 1950’s….A few years back I purchased “The Illustrated Science and Invention Encyclopedia” which was copyrighted in 1974. In volume one you can build either an “A” bomb or an “H” bomb. Just follow the instructions.”

A.J. Willett of Markesan:30 It is probably more important that the DOE willfully violates the First Amendment than that the article be published. Can the Department of Defense be trusted with an instrument of universal genocide? If your correspondent can get this information, don’t you suppose that others can and have also? Is not the Defense Department trying to perpetuate the illusion of security for the sake of its own power? You’ll have done the world a favor if we have to face these questions, publish or not.”

And things just got worse and worse for the government:

Michael Macdonald Mooney: The technical information needed to make atomic and hydrogen bombs has been in the public domain of the world community of physics beginning in 1939. Before the first H-bomb was even tested, Prof. Henry D. Smyth of Princeton University described in “The Smyth Report” how the Manhattan Project had designed, tested, and built the A-bomb, which is publicly known to be the trigger for the H-bomb. It describes in detail what problems they faced in design and production and how they solved them. By 1946 the world community of scientists understood the materials to be used in an H-bomb and how to use the A-bomb trigger, which was addressed in a book by Austrian physicist Hans Thirring. By 1948 the 1,000 students taking Smyth’s Physics 201 course were all provided this information and even treated to a class period using a “mousetrap bomb” to demonstrate how it works. Information describing H-bomb design was missing then, but has since been made public through encyclopedia articles written at the eighth grade level and in college textbooks for freshman physics.31 If this information is born secret, we will have to begin the cleanup by removing 63,000 copies of encyclopedias from community, school and library bookshelves and untold thousands more college textbooks.

Howard Morland: If this information is “born secret” as the government claims, then what is going to happen to me? They are classifying the inside of my head!32 To make sure I don’t reveal any restricted data are they going to lock me up forever? Tap my phone? Read my mail? Assign a guard to me? Let me walk free but have my every word the rest of my life pre-approved by classification experts?

The entire team of Justice Department lawyers assigned to the case:33 We should drop the lawsuit against The Progressive. Our argument is not going to hold up on appeal, but it is giving the magazine a lot of free publicity and giving away further secrets by commenting about the article.

Yet Attorney General Bell continued to insist that: “Our case is now weakened, but…the public interest and Atomic Energy Act require that we do our best; to do less is to submit to the coyotes of the media….By going forward, even if we lose, we support the national security, the law…and we enhance the First Amendment by keeping it from being used as a suicide provision….There is sometimes honor in taking a weak position.”34

But the final straw hit the camel’s back when Chuck Hansen began his letter-writing campaign: I am an ordinary guy, a computer programmer by profession. I take pride in my pigeon flock and my conservative Republican politics.35 But “I don’t think any U.S. government agency has the right to dictate what people say or think.”36 I also am a H-bomb amateur collecting information since 1971 and I can explain to you in a letter the basics of the Teller-Ulam Idea and H-Bomb design and why three government scientists, Edward Teller, George Rathjens, and Theodore Taylor, are the real culprits who have revealed secrets and should be prosecuted. The case against The Progressive is purely political, a witch-hunt. I’m sending this 18-page single-spaced letter to Senator Charles Percy of Illinois (and subsequently to seven newspapers all over the country).37

Attorney General Bell:38 Mr. Hansen’s letter is classified and those who publish it are subject to criminal penalties. The articles in the encyclopedias are classified. Questions about H-bomb manufacture are classified. The affidavits are classified. Arguments about whether or not something is classified are classified. Our decision about what is classified is classified. All of this information is “born secret.”

The Daily Californian: You classified a letter to Senator John Glenn from four Argonne National Laboratory scientists (Ted Postel, Alexander De Volpi, Gerald Marsh and George Stanford) complaining about your inconsistency and negligence in letting restricted Data into the public domain in this case. We published it anyway on June 13 since it does not endanger national security, rather it alleges government ineptitude in handling this whole affair,39 and it has been reprinted in six college newspapers around the country. Now we have obtained a copy of Chuck Hansen’s letter and we are going to publish it.40

Attorney General Bell:41 No, you are not. We have filed a lawsuit against you, and California Judge Robert H. Schanke has issued an injunction on Sept. 15, 1979 against your publishing or otherwise communicating this classified document.

Ron McCrea of the Madison Press Connection:42 We just published a copy of Hansen’s letter in a special Sunday edition of our newspaper along with an explanation why we think it should be published.

Attorney General Bell:43 “The printing of the Hansen letter by one publication, an action that was reported throughout the world, makes pointless any further effort to restrain publication of the H-bomb secret by others.” Therefore, we drop our lawsuit against The Progressive.

United States Court of Appeals, Seventh Circuit:44 Since the government has dropped its lawsuit, we hereby dismiss without opinion Judge Warren’s injunction against publication of Morland’s article by The Progressive.

In November of 1979, six months and nineteen days after intended publication, The Progressive ran Morland’s article unaltered (even including the typos!) from its original March 1979 condition, except for its title. Lawyers for The Progressive tried unsuccessfully to get the Appeals Court to decide the case on its merits despite the government attempt to dismiss the case,45 and did not secure release of the in camera documents until September 4, 1979.46

Notes

1 See especially Knoll, (May 1979). The approach The Progressive took to the whole affair is criticized in Warren Burkett, “The Progressive Case Revisited,” The Quill (Sept 1979), pp. 35-36. His major point is that they should have published without asking for government approval and praises the approach of the Daily Californian. Although Knoll soon came to agree with this view, Knoll (and others) have also pointed out that it is a lot easier for sidelines critics like Burkett to say that when it is not their butt that might end up in the slammer for the next twenty years.

2 Albert Einstein, in a letter appealing for support for the Emergency Committee of Atomic Scientists, January 22, 1947. Reprinted in The Progressive May 1979 p. 30 and Nov 1979 p. 17.

3 Knoll (June 1979), p. 32.

4 Knoll (1994), p. 708. The government initially sought to delete 2,190 words, but reduced it to 1,322 after Frank Tuerkheimer, the U.S. Attorney for Wisconsin went to the local library to check what information was readily available. Amongst the “secrets” the government sought to censor were “you need a fission trigger to ignite a fusion bomb” Leuders, p. 155 and “All electromagnetic radiation travels at the speed of light. Any particulate matter must travel at less than the speed of light.” Day (Nov 1979), p. 35, Both are facts of physics taught in high school physics classes.

5 Contrary to government claims, the legislative history of the Atomic Energy Act does not contain the “born classified” concept or any implication that such a concept would apply to a private citizen’s writings. The only mention of it was made during a congressional hearing by a private citizen (Dr. William Higgenbotham of the Federation of American Scientists) in reference to information created and in the possession of the government (not privately generated or possessed information), reported at 1954 U.S. Code, Cong. & Ad. News 1346. Pat Hennessey, Letter to Bruce Ennis and Burt Neuborne, April 14, 1979, in Progressive Box 5, File 4. For a legal analysis of the danger sof the “born secret” doctrine, see, for example, Mary Cheh, ““The Progressive and the Atomic Energy Act: Waking to the Dangers of Government Information Controls,” 48 George Washington Law Review 163-210 (January 1980).

6 Introduced in the Justice Department’s August 7, 1979 brief filed with the Seventh Circuit Court of Appeals, maintaining that technical information is not “an essential part of any exposition of ideas,” and therefore no more protected by the First Amendment than obscenity. Leuders, p. 186.

7 Leuders notes that the government even did a psychological analysis of the article in an effort to prove the article contained “secret” information. “Various experts concluded, with varying degrees of certainty, that Morland had outside help in preparing these materials.” Of course he did: Sam Day had extensively rewritten portions of the article, and other editors had contributed as well. Leuders, p. 178. They also sent two agents to retrieve copies of the article from Dr. Helen Caldicott, an anti-nuclear activist in Australia.

8 Sam Day, Jr., “What is the Real Purpose of Secrecy on Weapons?” Milwaukee Journal, March 16, 1979, p. 4. See also, Morland, “The Bomb’s a Secret?” New York Times, Mar. 26, 1979.

9 Postel was an Argonne National Laboratory nuclear scientist, though not a weapons expert, who filed two affidavits supporting the defendants. Knoll published his first affidavit in May 1979, p. 36-7. Postel’s second affidavit was hidden in the secret file since it discussed H-bomb design. Interestingly, Postel was among those few scientists who shot down the Pentagon’s exaggerated claims about the success of Patriot missiles in the Persian Gulf War. See Day (1997), p.

10 For example, Edward Teller, one of the fathers of the H-bomb, wrote an article for Encyclopedia Americana that used a diagram revealing its unusual shape and said, “Secrecy does not prevent the proliferation of nuclear weapons.” Reported in the Akron Beacon Journal, Mar. 24, 1979. Teller also wrote an op-ed piece criticizing nuclear weapon secrecy, “Kicking the Secrecy Habit,” New York Times, 5/27/73. During the case, the government confirmed that Morland’s diagram depicted not merely an ordinary H-bomb, but the most efficient design then available through Jack Rosengren’s affidavit. See Day (Nov 1979), p. 32-33. Amazingly, Rosengren’s affidavit was not classified, and thus, was published Mar. 18, 1979 in The Washington Post, thereby informing the world that (1) Morland’s article contained the design concepts of the most advanced weapons in the world, and (2) that there were unaccounted for copies of the article at large in the United States. This violated the DOE’s own stated policy, “Confirmation, denial, or extension of public statements covering information which is classified under this guide is prohibited.” DeWitt, pp. 11-12.

11 DeVolpi, A., G.E. Marsh, T.A. Postol and G. S. Stanford, in a letter to U.S. Senator John Glenn, chair of a subcommittee overseeing national security. None of the scientists thought Morland’s article was good science or that it made a significant political point, but they opposed the government’s attempt to censor it. Day (Nov 1979), p. 34. When Glenn ignored their letter for a full month, they sent their letter to additional individuals and organizations. See their book, Born Secret: The H-Bomb, The Progressive Case, and National Security (Pergammon Press, 1981).

12 In the portion of his affidavit that was sealed in camera, Kidder listed public domain articles on radiation implosion in Laser Focus (Sept. 1976); Science (Oct. 1976); the Annual Progress Report on Laser Fusion Program (1977) of Osaka University, Japan; and noted that in 1977, Arthur D. Thomas (Lawrence Livermore Classification Officer) advised John Griffin (the DOE Director of Classification) that radiation implosion was no longer secret (LOK 77-160, Nov. 2, 1977).

13 Kidder was a nuclear weapons designer at the Lawrence Livermore National Laboratory. Knoll, with notable government deletions, published his first affidavit on behalf of the defendants in May 1979, p. 38. The government put Kidder’s second affidavit into the secret file, including his statement that “No U.S. stockpile weapon that I know of works the way the Morland device is intended to work.”

14 Manning, Joe, “H-bomb’s Secrets are Few” and “H-Bomb Material Readily Accessible,” Milwaukee Sentinel, April 30 and May 1, 1979, respectively. In the article, Manning listed his resources: six books, four encyclopedias and six magazines or journals, and correctly described the three key concepts the government sought to censor: (1) separate stages, (2) radiation implosion, and (3) compression. Hugh DeWitt comments, “It became quite obvious that the big secret the Government was trying to protect was the fact that its H-bomb secrets were already in the public domain!” DeWitt, pp. 10-11.

15 Rotow was a 23-year-old Harvard dropout hired by the ACLU on behalf of The Progressive. On May 8, 1979, he went with a law student assistant to the Los Alamos Scientific Laboratory public library, looked in the card catalogue under “weapons,” and found UCRL-4725. This document contained much of the same information considered classified in Morland’s article. When the government learned this, the document was classified and library shut down for a thorough review. However, the government never even asked Rotow what he did with his copy: he made additional copies of the report and mailed six of them to various people around the country. “H-bomb Details Public for 4 Years,” Milwaukee Journal, May 17, 1979. Interestingly, a year earlier, Rotow had found another “secret” document, UCRL-5280, on the library shelf and the government had done a check for supposedly classified materials wrongly placed in the public domain. See Leuders, p. 182-3 and Alderman and Kennedy, p. 52. Furthermore, Rotow (an economics major) himself had written a 400-page thesis in 1978 describing probable atomic and hydrogen bomb designs, which had been quickly classified “Secret Restricted Data” by the DOE. See Chuck Hansen, U.S. Nuclear Weapons : The Secret History (Austin, Tx: Aerofax, 1982), p. 7.

16 Under the court’s gag order, this information was only provided to those with top-secret clearance. It only became public knowledge many years later when Knoll filed a Freedom of Information claim. See Knoll, (1994), p. 708. The Soviet publication was: A.M. Prokhorov,, et. al., “Laser Thermonuclear Fusion,” 19 Uspekhi Fizicheskikh Nauk [ Advances in Physical Sciences] 547 (American Institutes of Physics trans., July 1976).

17 Chicago Sun-Times, Mar. 21, 1979.

18 Robert Friedman, “The United States v. The Progressive,” Columbia Journalism Review (July/August 1979), p. 22.

19 Ben H. Bagdikian, “A Most Insidious Case,” The Quill (June 1979), p. 24.

20 March 11, 1979.

21 New York Times, March 25, 1979, reprinted in The Progressive (May 1979), p. 23. Three days later Three Mile island had a near-catastrophic accident, further fueling public mistrust of government secrecy about nuclear power and weapons. See also “Censors at Work,” New York Times, Mar. 29, 1979; Banning the Bomb Story,” The Nation, Mar. 24, 1979; and “Censorship Rears Its Head,” Seattle Post-Intelligencer, Mar. 14, 1979.

22 Reprinted in May 1979, p. 44. See also, “Bordering on Thought Control,” St. Louis Post-Dispatch, Mar. 29, 1979.

23 Reprinted in May 1979, p. 45.

24 Reprinted in May 1979, p. 46.

25 Mar. 30, 1979.

26 “Cowardly Lions of the Press,” Village Voice, Apr. 16, 1979. Hentoff continued his coverage of the case in articles published in the Village Voice on Apr. 23, Apr. 30, May 7 and Oct. 15 of 1979.

27 Village Voice, Apr. 23, 1979.

28 Reprinted in May 1979, p. 47.

29 Reprinted in May 1979, p. 49.

30 Reprinted in May 1979, p. 50.

31 Mooney, Michael Macdonald. “’Right Conduct’ for a ‘Free Press’,” Harper’s (Mar. 1980), pp. 35-44.

32 Morland (1981), p. 192.

33 “ U.S. Lawyers Urge End to Bomb Suit,” Washington Post, June 8, 1979, p. 1. Apparently, Frank Tuerkheimer, U.S. Attorney for Western Wisconsin, was the first to lay out his reasons in a letter dated May 25, 1979. The government now claims that letter has been destroyed. See Leuders, p. 183. Soon after, the “entire team of Justice Department lawyers assigned to The Progressive matter, with the backing of Deputy Attorney General Civiletti,” also urged Bell to drop the case. See Bell, pp. 133-4. Tuerkheimer later joined the law firm that represented The Progressive and in May 1995 and testified before the U.S. Senate subcommittee on Terrorism, Technology and Government Information considering a ban on certain forms of information on the internet that “efforts to curtail the flow of information are doomed to fail. The lesson of the H-bomb case is that it is the wrong way to go.” Leuders, p. 200.

34 Bell letter in response dated June 3, 1979. See Bell, p. 133-4.

35 Arlie Schardt, “Case Not Closed,” Time Magazine, October 21, 1979, pp. 45-46.

36 Bell at p. 134, quoting Robert Gillette, “Letter Seems to Offer Exposure of H-bomb Data,” Los Angeles Times, Sept. 19, 1979, p. 23.

37 Hansen launched a campaign on behalf of The Progressive, sending letters to congressmen, newspapers and others complaining about the government’s censorship and offering his own guess at Morland’s H-bomb design. He even announced an “H-Bomb Design Contest” with a $200 prize, declaring the winner to be the first entry classified as secret by the DOE. He won his own contest when his own letter was classified almost immediately. Leuders, pp. 186-7. Hansen went on to write his own book, U.S. Nuclear Weapons: The Secret History (Austin Tx: Aerofax, 1982).

38 Leuders, p. 185.

39 See “Record,” The Quill (July 1979), p. 9.

40 The Daily Californian is a student newspaper at the University of California-Berkeley. Leuders, p. 185.

41 United States v. Independent Berkeley Student Publishing Co., Inc., Case No. C-79-2681, N.D. Calif. (Temporary Restraining Order vacated September 17, 1979).

42 Madison Press Connection, Sept. 16 1979. See Ron McCrea, “A nation beset by confusion and fear,” The Progressive (Nov 1979), pp. 36-7. The MadisonCapitol Times planned to publish the letter on Sept. 17, 1979 and Chicago Tribune later that week. Leuders, p. 190.

43 Mark Sheehan of the Justice Department made the actual announcement on September 17, 1979. These quotes from Bell are from Alderman and Kennedy, p. 53. Terence Adamson, Special Assistant to the Attorney General and Director of Public Information, issued the following statement for immediate release to the press on Monday, Sept. 17, 1979: The Department of Justice has decided to seek dismissal of the cases against the Daily Californian and Progressive magazine. The decision was made after discussion with the Department of Energy and other agencies concerned. The Criminal Division will undertake a preliminary inquiry to determine whether any prosecution is appropriate for violation of court orders in the two cases and the Atomic Energy Act. The reason for the dismissal was the publication of an article containing restricted data concerning thermonuclear weapons information by a newspaper in Madison, Wisconsin. The Departments of Justice and Energy will take appropriate steps to ensure continued protection of the in camera materials presently under protective order in the Progressive case. No in camera material was filed in the California case.

44 Issued Sept. 28, 1979. United States v. Progressive Inc., Erwin Knoll, Samuel Day, Jr., and Howard Morland, 67 F.Supp. 990 (W.D. Wis 1979), dismissed without opinion, 610 F. 2d. 819 (7th Cir. 1979). On Sept. 13, the Appellate Court had heard opening arguments on the case. Notably, the court had refused the government’s request to argue the case once again in camera,United States v. Progressive, Inc. No. 79-98 (7 th Cir. Sept. 9, 1979) and showed clear skepticism for the government’s line of argument. See Knoll, (Nov 1979) and Leuders, pp. 187-8 and 194. Further, although The Progressive had zero support from its journalistic kin at the district court level, many prestigious news organizations, even some politically conservative ones, filed friend-of-the-court briefs on its behalf with the Court of Appeals maintaining either that Warren failed to apply the Times precedent properly or that the Atomic Energy Act itself was unconstitutional. See Arlie Scardt, “A Surfeit of H-bomb Secrets,” Time Magazine, June 25, 1979, p. 62.

45 See “Memorandum in Support of the Progressive, Inc.’s Response to the Government’s Motion to Vacate, to Dismiss, and to Remand.” Sept. 24, 1979.

46 DeWitt, p. 2.