GOVERNMENT PETITION TO COURT OF APPEALS HERE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP88-01314R000300380067-9
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 1
• Document Creation Date: December 16, 2016
• Document Release Date: September 8, 2004
• Sequence Number: 67
• Publication Date: June 25, 1971
• Content Type: NSPR

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Approved For Release 2004/0$28 I J-DP88-013148000 00380067-9
F'o'iloz,ing is the text of items it has after 6 p.m. on frustrated-for, any such' 1971, and that the re t.raint
..a government petition filed June 25, 1971, except certain proceedings in the District provided here will be the
with the 17,8. Court of Ap. items which its counsel Court in New York will be
peals here seeking a re- stated in Court on June 22, futile if the items in ques-. same as that to which The
hearing and modification 1971, would not be published. tion have already been New York Times is subject,
of- a decision governing Judging from items appear- thus preserving the relief:
Washington Post pub lice- ing in Th.e Washington Post published by The Wash which has been provided by
tion of the secret Pentagon
documents.
,Petition for Rehearing
And Modification
Of Decision
1. While this case was
pending before this court, a
closely related case involving
The New York Times was
pending before the United
States Court, of Appeals for
the Second Circuit. That
court rendered a decision in
that case shortly after five
o'clock on the afternoon of
June 23, 1971: A copy of the
decision of that court is at-
tached as an appendix to this
petition.
2. Up until this time,'
neither the District Court in
this case, nor this court, has
examined any of the doeu-
incnts involved. On a matter
involving the possibility of
grave and immediate danger
to the security of the United
States, there should be an
opportunity for an appro-
?..priate adversary hearing in
court. The determination of
such an issue should not be
made independently of judi-
cial review, even by the
press.,
3. Under the decision of
the United States Court of
Appeals for the Second Cir-
cuit, in the case involving
The New York Times, there
will be such a hearing with
.respect "to items specified in
the Special Appendix filed
with this Court (the Second
:Circuit) on June.21, ? 1971, or.
:any of such additional items
.as may be specified by the
plaintiff with particularity
on or before June 25, 1971,"
,-for the purpose of determin-
ing whether any of these
items "posd such grave and
immediate danger.to the se-
curity of the United States.
as to warrant their publica-
tinn being enininnrl "'
th
e
grave and immediate dill- F)icula 4VULL, muumuk;:a
4. Under the decision of t
'
for June 24, 1971, after the ingtoll Post. the Second Circuit, but no
decision of this court, there
1. If the decision and more.
appears to be uncertainty as we request an opportu-
to just what items are cov- order of this court rendered pity for oral presentation
ered by the undertaking of June. 23, 1971, are modified with respect to this petition,
counsel. so as to make them
at the earliest convenience
conso-
5. Both The Washington
Post . and The New York pant with the decision of of the court.'
Times for June 24, 1971, the Court of Appeals for the
''
state that The New York Second Circuit (a) the rem-
Times is going to appeal the edy provided by the Second
decision of the Court of Ap. Circuits decision will be
peals for the Second Circuit, preserved; (b) uncertainty
presumably by application will be eliminated as to the
for a stay, and petition for identity of the specific docu-
ceritorari. The United ments which counsel for the
States plans to resist such Washington Post has uhder-
application for stay, and to taken will not be published;
urge upon the Supreme (c) equality of treatment
Court that it not interfere will be provided between
with the decision of the The Washington Post and
Second Circuit, which pro-
vides for an appropriate ad- the New York Times; and
versary judicial hearing in (d) there will be an opportu-
the District Court on the nity for an appropriate judi-
question whether specified. ti
documents pose a grave and al hearing with respect to
specified documents as to
Immediate danger to the se- , whether they pose such
curity of the United States grave and immediate danger -
to warrant an injunction. to the security of the United
6. Under the decision of' States as to warrant an in-
this court, as it now stands, .,junction.
The Washington Post will be For. these reasons, the
free to publish all of these United States prays that
items, except the uncertain this petition for rehearing
number of items which its be granted, and that the do-'
counsel has stated will not c]siohh and order of this
be published.. Thus, if the Court rendered in this case
decision of the Second Cir-
cuit stands; on June 23, 1971, be modi-
(a) The New York fied so, that it will read in
Times will be under a re- the same terms as the deci-
straint which is not applic- sion of the Court of Appeals
able to the Washington' for the Second Circuit, like-
Post;' '
wise rendered on June 23,
(b) This will be unfair 1971, in the'case of United
to The New York Times; 'States v. New York Times
(c)- The opportunity 'Co., Docket No. 71-1617. Any
such modification should, of
provided by the decision ?cottrse, provide that it will
of the Second Circuit for be course, t'to.further modifi-
cation in the event that the
termination of the ques Court of Appeals for the
tion whether specified
documents porn such - - - -
thls Court,
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