APPEALS RULING, DISSENTS ON POST'S SERIES ON VIETNAM

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP88-01314R000300380071-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 2
• Document Creation Date: December 16, 2016
• Document Release Date: September 8, 2004
• Sequence Number: 71
• Publication Date: June 24, 1971
• Content Type: NSPR

Approved For Release 206 /Wi8 ~i-?;b*8-01314R000300380071-4
2 4 JUN 1971
Following is the text of the
majority opinion of `seven
udges on the U.S. Court of
Appeals for the District of
Columbia affirming the de-
cision of U.S. District Court
Judge Gerhard` Gesell in The
4V'ashington Post case:
... ,This Js an appeal by the
United States from an order
of the district court denying
a, preliminary injunction
against. the publication of
material derived from a
,document entitled "History
`'cf U.S. Decision-Making Pro-
`eess on Vietnam Policy." We
,affirm the district court.
,
The' district court denied substantial
doubt that effec-
,the preliminary Injunction tive relief
of the kind sought
after a hearing. By affidavits by the
government can be
,and the testimony of wit-
provided by the judiciary.
;,nesses at the hearing the The
e government has re-
attempted to
quested a stay in order that
,demonstrate that the publi- it
may present this matter
,cation of the material in to the
Supreme Court of the
,question shou1.d be re-
United States. Accordingly,
'strained because it would
the stay previously entered
sgravely -- prejudice the de-
is continued.until 6:00 p.m.,
fense interests of the Unit-
;:ed ' States or result in irre-
Friday, June 25, 1971.
:parable injury to the Unit-
Affirmed
;,ed States. The district court
,-found that the government
failed to sustain its burden. Following is the text of
,,Specifically, the district ?Appeals Court Judge George
court directed the govern- E. MacKinnon's dissent:
went to present any docu
t-ment from the "History" the , It is unfortunate that this
disclosure of which in the case comes to us on a blind
,government's j u d g m en t record, in which the actual
,,would irreparably harm the documents in the possession
United. States. The govern the news not
;iment s affidavits and testa- of paPer are
nuony, presented largely in before us. Our ability to deal
camera, discussed several of effectively with the problem
the documents. The district isalso currently complicated
court round either- that dis- today entire by 47 the volumes release to of the
Con-
closure of t h o s e specific gress where the problem .of
documents would not. be disclosure may be com-
harmful or that any harm pounded. This and the
resulting from disclosure widespread disclosure here-
would be insufficient - to tofore made, would minirn-
over-ride First Amendment ize the value of any re-
interests. Having examined straining order. However,
the record made before the by agreement of the parties
district; court we agree with some of the documents will
its conclusion. In our opin- be protected; and an exam-
ion the government's proof, ination of some of the other
judged by the standard sug- documents convinces me
gested in Near v. Minnesota, that we should not entirely
283 U S. 697, 716 [i-d9~ddleIlQaSA ~6~49f~
-not-justify-_an.jniu tion-----_to_protect-the security of our-
The vitality of the prin-
ciple, that any prior re-
straint on publication comes
into court under a heavy
presumption against its
constitutional validity, was
recognized by the Supreme
Cotu?t of the United States
as recently as May 17, 1971,
Organization for a Better
Austin v. Keefe, No. 135,
October Term 1970, 39 LW.
4577.
Our conclusion to affirm
the denial of injunctive re-
lief is fortified by the con-
sideration that the massive
character of the "leak"
which has occurred, and the
disclosures already made by
several newspapers
raise
nation's military and diplo- Holmes: "The character or
matic activities even though every act depends upon the
the ability of any court to circumstances in which it is
act effectively is greatly im-_ done. . The question in
,paired by the present clirna- every case is whether the
ate of disclosure. Since we words used are used in such
must pass on some phases circumstances and of such
of the matter, at the very a nature as to create a clear
least I would remand to the and Present danger that
District Court for a more they will bring about the
precise ruling by the trial substantive evils that Con..
court as to several. specific gress has a right to prevent:
It is a question of proximity
documents. I would not re- and degree."** To which
yard the theft of these docu- Justice Frankfurter added:
means by a complete de-
classification. There Is a
regular method . by, which
access to classified informa-
tion can be accomplished
and in my view the pre-
scribed method should be
followed in this as in other
instances. As this case well
illustrates, courts are not
'designed to deal adequately
with national defense and
foreign policy. Epstein v.
Resor, 421 F.2d 930, 933 (9th
Cir.), cert, denied, 398 U.S.
96 (1970).
Following is the , text of
Appeals 'Court Judge Mal-
colm R. Wilkey's dissent:
I would affirm the. action
of the trial court in not
restraining - the . Publication
of the vast majority of these
documents, but I must dis-
sent from the blanket,.total
affirmance of . the trial
court's action, without a re-
mand for a particularized
finding as to the likelihood
of harm resulting from the
publication of certain speci-
fic papers.
We all take pride In free-
dom of speech and the press
as one of the true ..glories
of our form of government,
perhaps most eloquently
apotheosized by Judge Le-
srned Hand, "To many this
.s, and always will be, folly;
out we nave staked upon it
our all."* This sets an ideal
reference' point, but Judge
Hand, whirl he'u.ttered those
"Free speech is not so abso-
lute or irrational a concep-
tion as to imply paralysis of
the means for effective pro-
tection of all the freedoms
secured by the ' Bill of
Rights."***
In- the desire to'minimize
the prior restraint of publi-
cation in the stay orders,
the compression of time
severely handicapped the
parties, the trial court and
this court In focusing on
the few specific documents
whose publication presently
constitute a , clear danger.
The Government did not
know' which documents out
of the 47 volumes The Post
had in its possession until
a partial list was furnished
the night before the second
hearing before, the ' trial
court,,. a supplemental- list
was furnished in'the middle-
of the hearing, and not until
the Government had time to
check the Post' description
of each document against the
47 volumes'was the Govern-
ment In a position to say
whether. in its opinion pub-
lication would be dangerous
or not. The obvious clarify-
ing solution . of The Post
physically - producing the
documents in its possession
was barred by- The Post's
objection, sustained by the
trial court, that its source,
would be revealed.
In this stateof affairs the
Government necessarily re-
lied on affidavits couched
in general terms, two dated
.,before and one on the day of
C~su t }} g bile and the
ihon of ,two af-
are the words of Justice fiants on the material in the
 Approved
affidavits did not satisfy the
trial court with the requisite
specificity as to the clear
danger that publication of
any single docunyent pres-
ently represented. On this.
state of the record the court;
here sustains the trial court,
saying that the Government.
did not sustain its admitted-
ly heavy burden of proof to
justify a prior restraint on
publication.
-We have not been furnished
any of the original, docu-;
merits. But on careful de--
tailed study of the affidavits
in evidence, I find a number
of examples of documents
which, if in the possession of
the Post and if published,
could clearly result in great
harm to the nation. When I
say.'tharm,"' 1 .mean the
struction of alliances, the
greatly increased difficulty
of negotiation with our en-
emies, the inability of our
diplomats to negotiate as
honest brokers, between
would-be belligerents.
The court's opinion relies
upon the standard of Near v
Minnesota in regard to prior
restraint. So do I. Near cites
"the publication of sailing
dates of transports or the
number and location, of
troops" **** as obvious ex-
'ampler where prior restraint
of publication would be justi-
-fied. In the affidavit evidence
'before the trial court and
this court there are examples
cited which meet this stand-
ard. There appears to be a
clear and present danger of
military casualties enhanced.
There are numerous ex,
amples of the likely destruc-
tion of our diplomatic efforts,
and this should not be put on
?a lower scale than immediate
prospective military losses.
. Only those who think of
the settlement of Interna-
tional disputes by sheer mili-
tary power would derogate
the importance of diplomatic
negotiations as our first line
of defense. It is literally true
that when diplomacy fails
'lives are lost.
Of course the great bulk of.
these" -documents probably
may be characterized as only
embarrassing, some not even
that, and are ready for study
by'jourrialists, historians and
the public; the public should
have-them. Yet. the small per-
centage which appear. dan-
gero.us .-could be. gxoviously,
harmful to this country,
Since , 'neither we jlor the.
trial court had before it the'
individual documents, and
the trial court dealt, only in
generalities, because that was
necessarily the Government's
case, I ?would remand this.
case to the trial court for the'
Government, first, now that
it has the Post[Is] complete''
list and has had the time to
check the list against the 47
volumes, to say which docu-
ments it objects to' having
published. This, in my judg-
ment, will immediately re=
lease the great bulk of these
for publication. (If it doesn't,'
the Government is relying on
the ,wrong standard.) Next,
the Government can pinpoint
its objections to each of the
remaining. documents, Oil
the basis of what we heard
in oral argument, The Post
might agree that some
would not be published, leav-
ing a remainder on which it
differs with the, Government,
On the remainder the trial:
court can then rule, apply.
ing the Near standard, but
this time knowing to which
specific document the stand-
ard is to be applied.
*United States V. Associated Press,
52 1% SuPV. 362? 372 (S.D. X. Y.
1943 ).
*"Schenck v united States, 249
U.S. 47, 52 (1919).
""Bridges v, California, 314.. U.,
252, 282'1
82 (1941), .
"*"Near v. Minnesota; 283 V.S.
697,, 71? (1930).
Approved For Release 2004/09/28 : CIA-RDP88-01314R000300380071-4