DRAFT ONLY. DO NOT USE WITHOUT PERMISSION FROM THE AUTHOR.

From Prof. Bruce Altschuler's casebook on presidential powers.

CHAPTER TWO: THE PENTAGON PAPERS CASE

Although he had been one of the prime architects of the Vietnam War, by 1967 Defense Secretary Robert McNamara had developed serious doubts. In June, without telling either President Lyndon Johnson or Secretary of State Dean Rusk, he commissioned a study, which he hoped would be released soon after the end of the war, to determine how the United States had gotten into its current state of involvement in Vietnam. McNamara later said that his purpose “was to bequeath to scholars the raw material from which they could reexamine the events of the time,” . According to the study’s director, Leslie Gelb, in order to avoid being seen as having influenced the results, McNamara gave no specific guidance about what to write. The authors were granted “total access to the files of the Office of the Secretary of Defense”, State Department historical files, materials on request from the CIA, and memos from the National Security Council Staff but no records of White House meetings or internal memoranda from the American embassy in Saigon. Nor were they permitted any interviews. Work continued even when McNamara was replaced by Clark Clifford, ending shortly after the beginning of the Nixon administration. Typing and copying of the forty-seven volume report consisting of three thousand pages of narrative and four thousand pages of documents delayed distribution until June 1969. Of the fifteen copies, five remained in the Defense Department, one went to National Security Adviser Henry Kissinger, one each to the Lyndon Johnson and John Kennedy presidential libraries, and seven to former Johnson aides, two of which were stored at the Rand Corporation in Washington, DC. Because the study was classified Top Secret, all copies were stored securely. According to the Executive Order establishing the classification system, Top Secret applied to material whose disclosure “could result in exceptionally grave damage to the Nation.”

The study, officially titled “History of U.S. Decision-Making Process on Vietnam Policy” but now universally referred to as the Pentagon Papers, seemed destined to do little more than gather dust. Although Lyndon Johnson used parts in writing his memoirs, McNamara himself did not read them nor did Nixon’s Defense Secretary Melvin Laird. What was to make the Papers the center of national attention was the obsession of Daniel Ellsberg, who had been one of the study’s authors. Ellsberg had been a strong supporter of the war but, after spending two years working alongside the military in Vietnam, had a reversal of belief. In the fall of 1969, he began a campaign to make the Papers public as “an act of resistance, but of a particular sort, aimed at a broader and ultimately better understanding of the war process.” He hoped that if the public learned how they had been deceived by their leaders, they would turn against the war. As an author of the study and an employee of the Rand Corporation, he was able to slip parts of the papers out of the office during the evening, make copies, then return the originals the next morning.
Nevertheless, his efforts to gain release of the Papers proved frustrating. A November meeting with Senate Foreign Relations Committee Chair J. W. Fulbright resulted only in a request to Laird to release the Papers that was turned down. During the following year, Ellsberg offered the Papers to a variety of elected officials opposed to the Vietnam War, including Senator George McGovern, without success. In desperation, he turned a copy over to Neil Sheehan of the New York Times in March 1971, holding back four volumes concerning negotiations in order not to interfere with ongoing efforts. He also blacked out footnotes which included important names, places and dates.

An examination to determine whether the material was genuine was followed by a fierce internal debate over whether to publish. Although all the involved reporters and editors strongly supported publication, a number of other editors and executives did not. Among attorneys, general counsel James Goodale favored going ahead despite strong opposition from their outside law firm, Lord Day & Lord which considered publication not only unpatriotic but a violation of espionage laws. The firm’s lead attorney, former Eisenhower administration Attorney General Herbert Brownell, even refused to read the Papers out of fear it could be considered a criminal act. Ultimately, the Times decided to publish the papers as a nine part series beginning June 13. Dubbing it “Project X,” the newspaper installed a team of reporters in a hotel room that was swept for bugs and had guards continuously posted outside. Despite finding little in the Papers relating to ongoing military operations or negotiations, the Times took precautions to protect national security such as deleting time groups from full texts of documents to prevent them from being used to break codes.

When the first installment appeared on Sunday June 13, President Richard Nixon’s immediate reaction was, according to top aide H. R. Haldeman, “muted” since the material was entirely about previous administrations. Why did he suddenly change his mind, authorizing not only the legal action this chapter will concentrate on but a variety of other attacks upon both the newspapers involved and Ellsberg, including the establishment of a secret anti-leak “plumbers” unit that would break into the office of Ellsberg’s psychiatrist? The predominant view is that Kissinger pushed him into action. Historian Stephen Ambrose emphasizes a June 17 meeting at which Kissinger told the president that if he failed to act against the Times, “it shows you’re a weakling.” Ambrose concludes “that line propelled Nixon into action on numerous fronts. The Justice Department sought an injunction against the publication of any more of the Pentagon Papers.” Jonathan Aitken agrees, citing Haldeman’s statement that Kissinger “went completely into orbit” at that meeting. Whatever accuracy this may have concerning later actions, it can hardly explain the lawsuit which Nixon had approved three days earlier and filed in court on June 15. In fact, by the morning after the first installment, Nixon was angry enough to suggest cutting off all Times access to the administration. More recently, Anthony Lewis pointed to a newly declassified transcript of a phone conversation the afternoon of publication in which Kissinger told Nixon, “It’s treasonable, there’s no question...I’m absolutely certain that this violates all sorts of security laws” as helping galvanize the president into action. However, the transcript shows that before Kissinger’s remark, it was Nixon who said “this is treasonable action on the part of the bastards that put it out.” Certainly Kissinger was unhappy about the leak, fearing it could damage secret negotiations for Nixon’s upcoming trip to China but, as Stanley Kutler has written, because Nixon regarded unauthorized leaks “as a personal affront to his notions of presidential authority ... he did not need others to prod him into lashing out at his `enemies.’”

Assistant Attorney General William Rehnquist was assigned to evaluate going to court to seek an injunction against publication of the remaining installments. Because it is generally agreed that prior restraints such as injunctions against publication are almost completely barred by the First Amendment, there were few Supreme Court precedents to guide him. Most commonly quoted was Chief Justice Hughes’ statement in Near v. MN (283 US 697, 1931) that among the few things that could be prohibited were “the publication of the sailing dates of transports or the number and location of troops.” Even though this was dicta in a case that had nothing to do with either foreign policy or national defense, it would be relied upon by all parties and judges in the Pentagon Papers case. Lacking access to the Papers, Rehnquist simply concluded that if the administration could show harm to national security comparable to the examples given by Hughes, an injunction might be granted.
On the afternoon of Monday June 14, Nixon approved the lawsuit. At 7 PM, Attorney General John Mitchell sent the Times a telegram demanding a halt to further publication and return of the Papers to the government to prevent “irreparable injury to the defense interests of the United States.” Without threatening any particular action, the telegram suggested that publication had already violated the Espionage Act. Two hours later the Times replied that it would “respectfully decline.” When the third installment appeared the next day, it was supplanted as the lead story by the refusal to heed the Attorney General’s request. Late that night Brownell informed the Times that due to his involvement in drafting the original Executive Order on which the classification system was based as well as the Times’ refusal to follow his firm’s legal advice, Lord Day & Lord would not represent the newspaper in court the next day.
The Times quickly hired law professor Alexander Bickel, assisted by Floyd Abrams, to argue the case. Unaware of the specific remedy the government would seek the next morning, they worked all night preparing a brief. Meeting with his new clients, Bickel urged them not to take the absolutist position that the First Amendment prohibited all prior restraints as only Black and Douglas would likely support such a view when the case inevitably would be heard by the Supreme Court. Even if William Brennan and Thurgood Marshall could be convinced to agree, the necessary fifth vote would have to come from either Byron White or Potter Stewart who would respond negatively to absolutist arguments. With some reluctance, the newspaper agreed to concede the possibility of a prior restraint while limiting its application to rare situations where any harm to the country was far greater than in this case.

On the government side, strategic disagreement was far greater. Because Assistant Attorney General Robert Mardian believed that publication could be stopped for anything classified Top Secret, at first he refused to tell even the government’s attorneys which documents presented risks to national security or why, let alone have government witnesses provide justification. U. S. Attorney Whitney North Seymour, Jr., who would represent the government in court, believed this to be a legally untenable position. Although he was eventually allowed to use some material, the delay hampered his preparation. The contradictions between these two positions would continue to plague the government throughout the case.
At 9:30 AM, June 15, Seymour told Bickel and Abrams to be in U. S. District Court in half an hour. The government must have been pleased that the judge was Murray Gurfein, a recent Nixon appointee, hearing his first case, who had served in intelligence during World War II. Gurfein’s sympathies seemed clear as he urged the Times “to sit down with the Department of Justice and as a matter of simple patriotism determine whether publication ... is or is not dangerous to national security.” He issued a Temporary Restraining Order (TRO), preventing publication until a June 18 hearing to decide whether or not to issue a permanent injunction. However, he refused the government’s request to order the seizure of the Papers. Throughout the case, the government would be handicapped by its lack of knowledge of which parts of the Papers the Times possessed. It feared that pointing to damage from any specific item could alert the newspaper to additional information that had not been provided by Ellsberg.

To ensure continued public release of the Papers, Ellsberg then offered them to the three television networks, each of which declined. Because television stations, unlike newspapers, are licensed by the government, the networks may have feared loss of licenses for the stations they owned. The Washington Post accepted, beginning its series June 18 although, unlike the Times, it declined to include the text of classified documents. A telegram from Mitchell identical to that sent to the Times resulted in a quick refusal. Perhaps dissatisfied with Seymour, Mardian chose to sue the Post in Washington DC where he drew a less favorable District Court Judge, Gerhard Gesell. The government argued that the fact of classification was enough to justify a TRO until it could present evidence of harm. Despite warning the Post of the possibility of criminal prosecution, Gesell denied the TRO, citing a lack of specifics from the government. As the Post began publishing its second installment, the government appealed. At 1:20 Saturday morning, a majority of a three judge panel reversed, ordering Gesell to hold an evidentiary hearing Monday June 21 on the grounds that the possible damage from publication far exceeded any harm from such a brief delay. Dissenting Judge J. Skelly Wright replied that such a position “cheapens the First Amendment.”
Back in New York, on June 18 Gurfein held both open and closed hearings to determine whether to grant an injunction. Although the government at first claimed that presidential power to seek an injunction came from the espionage laws, the provision they cited used the word “communicate” instead of “publish” defense information, suggesting that congress intended to combat spying rather than limit the press. The statute’s lack of an injunctive remedy reinforced the point. Responding to a skeptical reaction from the judge, Seymour switched to a reliance on the president’s inherent power to protect national security, in this case by classifying documents. Publication of such documents would be an exception to the presumption against prior restraint. Bickel replied that the president had neither statutory nor inherent constitutional authority to sue. Furthermore, despite conceding that prior restraints could be allowed on rare occasions, he claimed that this was not close to one.

During the closed hearing, the government presented three witnesses to demonstrate the harm caused by publication. However, just as the Times had refused Gurfein’s request to negotiate with the Justice Department over which parts of the Papers to publish, Seymour declined to specify which were purely historical to allow them to be published. Most of the evidence centered on the effects of publication on continuing negotiations and relations with American allies. Deputy Under Secretary of State William Macomber testified that, “I just don’t see how we can conduct diplomacy with this kind of business going on.” When the public session resumed, Bickel’s closing characterized the government’s evidence as largely hypothetical, aimed at avoiding embarrassment rather than protecting national security, and based on events already known to the public or well in the past. Seymour’s primary counter was that simply showing proper classification of the documents should suffice for a preliminary injunction.
The next day, Gurfein ruled against the government while allowing the TRO to remain in place long enough for an appeal to the Second Circuit. The president, he believed, only had the inherent power to obtain an injunction if the material involved was “absolutely vital to national security.” In this case, “no cogent reasons were advanced as to why these documents, except in the general framework of embarrassment ..., would vitally affect the nation.”

Chastened by the decision, Seymour’s superiors granted his request to add a secret appendix specifying the most damaging sections of the Papers to his appellate brief. Although adding new evidence during an appeal is generally frowned upon, the court allowed the appendix on the grounds that it merely highlighted the most damaging parts of already existing evidence. The main points of the brief were that publication would damage relations with countries assisting in negotiations as well as those providing troops and bases, harm the South Vietnamese government by exposing American pressure on it, and inform the enemy in “great detail the process involved in US decision making.” The Times’ public arguments concentrated on separation of powers while its sealed brief reiterated that the government’s witnesses had provided mere speculation or outdated and already public information such as past bombing targets. By a 5-3 vote, the Court of Appeals continued the stay, ordering Gurfein to hold additional hearings to determine whether disclosure would “pose such grave and immediate danger to the security of the United States as to warrant their publication being enjoined.”

Gesell’s hearing began at 8 AM on Monday June 21. Meeting with both sides during the preceding weekend, he had ordered the Post to provide the government with a list of documents in its possession and requested the government not only to specify the most sensitive documents but also “to particularize the reasons for its position document by document.” The Post added a new twist by pointing out that an injunction would now be ineffective as parts of the Papers were in circulation among members of congress, the authors of a forthcoming book, and soon even as “extensive, verbatim quotations” in Lyndon Johnson’s forthcoming memoirs. During the two hour open session, the government further angered the judge by refusing to release even the two volumes consisting entirely of public presidential statements as well as seeking to exclude some of the defendants from the closed hearing. The secret session was a virtual repetition of that in Gurfein’s court. In its closing arguments during the final open session, the government again claimed that an injunction would be appropriate simply because the documents were properly classified. Even if that standard was rejected, it had provided adequate evidence to show that publication would result in sufficient harm to meet the Near standard. An injunction would allow time to review the Papers in order to declassify those not damaging to national security. The Post, like the Times, countered that classification alone was not enough for an injunction, that most claims of harm were purely hypothetical, and that no evidence had been provided that the installments already published had done any damage. Lacking time for a written opinion due to the 5 P.M. deadline imposed by the Court of Appeals, Gesell orally denied the injunction based on the government’s failure to demonstrate “an immediate and grave threat to the national security.” The Court of Appeals quickly extended its TRO, scheduling arguments for the next afternoon, June 22, the same day the government’s appeal of the Times case was heard in New York.
Meanwhile, Ellsberg provided 1700 pages of the Papers to the Boston Globe whose series began on the 22nd. When the government sued, District Court Judge Anthony Julian issued a TRO pending a June 25 hearing. Because the Globe failed to file an immediate appeal, it was not a party to the case in the Supreme Court. Quickly other newspapers, including the Chicago Sun-Times, Los Angeles Times, Baltimore Sun, and St. Louis Post-Dispatch obtained fragments of the Papers from a variety of sources then began their own series. The government took only the last to court, obtaining a restraining order just as the case reached the Supreme Court.

In its brief to the entire Washington DC Court of Appeals, the government claimed that because the president had “sole discretion” in foreign policy, his decisions “should not be subject to judicial review.” Instead, Gesell should have limited his review to whether the classification had been arbitrary or capricious. This was basically Mardian’s original extreme position which would have made any evidence of harm to national security irrelevant. The Post replied that Gesell’s standard of imminent “grave and irreparable injury” was correct. It again noted the expanding number of newspapers publishing parts of the Papers which would make any injunction ineffective.
On Tuesday morning, Mitchell assigned Solicitor General Erwin Griswold to take over the appeal for the 2 PM hearing that day. Without time even to read the briefs, Griswold was faced the paradox of arguing that only proper classification was necessary for an injunction while meeting the court’s demands for specific evidence of harm. The government was given an additional closed hearing by the court but its claim that publication of a 1964 radio intercept would reveal secret intelligence was destroyed when the Post immediately produced the transcript of a 1968 Senate committee hearing containing the identical document. Late Wednesday afternoon the appellate court, by a 7-2 vote, upheld Gesell in an unsigned opinion simply citing the heavy burden against prior restraint and the likely ineffectiveness of any injunctive remedy in light of the multiple publications by other newspapers. Even dissenting Judge Malcolm Wilkey favored releasing the “great bulk” of the documents
On Thursday, the Times and the government appealed the conflicting appellate court decisions to the Supreme Court. Facing the prospect of ten more days before the end of the District Court hearing added to the nine that had already passed, the Times sought an immediate appeal. The government was satisfied to wait until the Supreme Court returned for its October term as long as the TROs remained in effect. Justices Warren Burger, Harry Blackmun, Harlan and White lined up with the government while Black, Douglas, Brennan, and Marshall favored immediate dissolution of both injunctions. This left the decision in the hands of Stewart who informed the first group that if they did not agree to an immediate hearing, he too would vote to overturn the injunctions. The Court quickly agreed to schedule arguments for an unusual Saturday hearing while continuing the TROs against publication until then.

Lacking the time to read the Papers, Griswold asked administration officials to let him know which parts presented the greatest threat. In his sealed brief, he reduced their forty items to eleven. When he asked Mitchell to approve this strategy, the Attorney General first replied that, never having even seen the Papers, “I don’t see how I can approve your plan.” After a pause, however, he continued, “but you are in charge of the case, and if you think that is the way it should be handled you have my complete support.”
Security was so tight at the June 26 hearing that government agents confiscated all secret briefs from the Times and Post’s attorneys, even their own, at the end of oral arguments. During the open hearing, Griswold criticized Gesell’s standard of “immediate harm” as too limiting, suggesting instead “great and irreparable harm to the security of the United States” because “in the whole diplomatic arena the things don’t happen at 8:15 tomorrow morning. It may be weeks or months.” Publication had already closed some channels of communication. Nor was the standard of publication leading to a war useful as the nation was already effectively at war. The public brief preferred the second circuit’s standard of “grave and irreparable harm” adding that the inevitability of harm required by Gesell should be replaced by its “real likelihood.” Relying on Curtiss-Wright, it claimed the president could sue based on his broad foreign affairs power to conduct diplomacy and responsibility as commander-in-chief to preserve military secrets. Going even further, it argued that courts should not make an independent judgment of the justification of any security classification as only the president possesses adequate knowledge to make such evaluations.

In contrast, Bickel agreed with Gesell’s standard for a prior restraint. He also restated his earlier view that the president lacks any inherent power to obtain an injunction in this situation. Countering the government’s use of Curtiss-Wright with Youngstown, he argued that authorization to sue for a prior restraint was legislative in nature, belonging to congress rather than the executive. This made it difficult for him to answer Douglas’ question whether this meant congress could limit freedom of the press. Joel Gora has suggested the response that if there are limits to press freedom they can only come from congress as was true of property rights in Youngstown. The Post concentrated on First Amendment arguments to the exclusion of separation of powers.
In his secret brief, Griswold presented the following items:
1. The four volumes on secret negotiations. Without telling which, the government cited remarks that might offend other countries, then concluded that “one never knows where the break may come and it is of crucial importance to keep open every possible line of communication.” Although Griswold has stated that he was not aware that these volumes were withheld from the newspapers by Ellsberg, the first installment of the Times series had pointed this out as had the Post.
2. Derogatory comments about American allies could offend South Korea, Thailand, and Australia thereby slowing troop withdrawal. No specific comments were cited.
3. The Papers had specific references to still active intelligence agents but the brief mentioned none by name nor did it mention any of their activities discussed in the Papers.
4. SEATO contingency plans were disclosed although the brief provided neither details nor evidence of harm.

5. A 1967 intelligence estimate of Soviet reaction to the Vietnam War “may strengthen them both by giving them better understanding of us, and by leading them to correct matters on their side.”
6. Estimates of Soviet supply capacity were still current. However, most of these estimates seem rather vague. One example is that they “should be expected ... to provide some new and better weapons and equipment.”
7. A 1967 Joint Chiefs memo suggesting the possibility of a nuclear response should China attack Thailand, although not an actual recommendation, if disclosed “could have very serious consequences to the security of the United States.”
8. A 1968 telegram from then Ambassador to the USSR Llewellyn Thompson assessing that country’s reaction to the Vietnam War would have a similar effect to number five as well as damaging Thompson’s “continuing effectiveness” as a member of the SALT delegation. The brief neglected to mention his withdrawal due to ill health.
9. There was a short reference to confidential discussions between South Vietnamese and Laotian military staff members. Disclosure could lead to a negative reaction from those countries.
10. Showing the National Security Agency’s successes in breaking codes “presumably would assist enemy.”
11. Publication had already ended an attempt to enlist a third country to aid in the release of POWs. Future disclosures could endanger similar efforts “with governments which are not wholly friendly, such as Sweden and Russia.”
Unable to read this brief before submitting their own, the newspapers instead rebutted the government witnesses’ secret testimony. The Post suggested that rather than demonstrating serious harm, there was only “a deep seated -- if not reflex -- commitment by many high Government officials to maintaining continued secrecy.”

As in the steel seizure case, the was too little time to develop a consensus behind a single majority opinion. Instead, the six justice majority simply voted for a brief per curiam opinion stating that the government had not met the “heavy burden” against prior restraints without providing any guidance about how that burden could be met. The existing TROs were dissolved and the newspapers allowed to publish. Each of the six members of the majority wrote a separate opinion with some endorsing one of the others but none commanding more than two votes.
Only Black and Douglas, as expected, took the absolutist position against any prior restraints. For Black, even the original TROs, like any injunction against publication, were “a flagrant, indefensible, and continuing violation of the First Amendment.” Stressing the importance of a free press in a democratic society, he praised the newspapers for acting “to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.” Furthermore, finding an inherent presidential power “to halt the publication of news by resort to the courts would wipe out the First Amendment.”
Douglas too believed that the First Amendment leaves “no room for governmental restraints on the press.” For him, the Pentagon Papers were part of an important public debate, the kind of debate that is “vital to our national health.” Although each joined in the other’s opinion, Black and Douglas’ views have never gained the support of any other Supreme Court justice.

Brennan’s opinion, however, came close to the absolutist position. For him, prior restraints should only be granted in a single narrow class of cases -- during wartime when the government can prove that publication “must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea.” Believing that the government had come nowhere near proving this, he expressed the hope that the Court’s decision would deter lower courts from granting TROs similar to those in this case in the future.
Unlike the other justices, Marshall considered this primarily a separation of powers case. “The issue is whether this Court or the Congress has the power to make law.” Congress’ refusal to authorize prior restraints to protect national security prevented the judiciary from granting such injunctions. Citing Youngstown, he asserted that separation of powers prevents the president and courts from making law “without regard to the action of Congress.” Instead, the executive should use the congressionally enacted statutes to protect its secrets through criminal prosecution. Although David O’Brien has called Marshall’s opinion “the most instructive for illuminating the constitutional and political issues in the Pentagon Papers....case,” it has not commanded much influence on subsequent Supreme Court decisions.
The pivotal opinions were those of Stewart and White, each of whom joined the other. For Stewart, the Constitution gives the president “enormous power” in national defense and foreign affairs. Because this power is largely unchecked by the other branches, only a public informed by a free press can effectively limit executive excesses. On the other hand, diplomacy and defense necessitate confidentiality. The solution to this conflict is that “the responsibility must be where the power is,” with the executive rather than the judiciary which leaves the courts merely to apply congressional criminal statutes after prosecution or decide the constitutionality of civil remedies. Without such specific statutes or proof of “direct, immediate, and irreparable damage to our Nation or its people,” the courts lack power to prevent publication.

Despite his belief that publication is likely to “do substantial harm to public interests,” White did not think that this was enough, in the absence of specific and limiting legislation, to meet the heavy burden against an injunction. Because the material presented to the Court was likely to remain secret, the government’s “grave and irreparable danger” standard would provide little guidance to future courts. Instead, the administration should utilize the 1917 Espionage Act which, while specifically rejecting executive censorship powers, provided a criminal remedy against publishing military secrets. White devoted approximately half of his opinion to explaining how this and similar laws could supply grounds for criminal prosecutions, even on facts that would not justify a prior restraint. He “would have no difficulty in sustaining convictions under these sections.”
The three dissenters were most upset by the lack of time devoted to such an important case. For Burger, the conflict between the basic principles of a free press and “the effective functioning of a complex government” made this a difficult decision, exacerbated by a lack of information due to the “unseemly haste” with which the case was heard. Like all citizens, the newspapers had a duty to report the receipt of stolen property to the authorities. During the months the Times spent analyzing the Papers, it could have negotiated with the government. Lacking adequate information, Burger would have returned the case to District Court for a full trial.
Blackmun was also upset by the speed of the case. “The country would be none the worse off were the cases tried quickly, to be sure, but in the customary and properly deliberative manner.” He would allow the lower courts to develop standards for balancing the press’ broad right to publish against the far narrower government right to prevent such publication. Since the case had been decided the other way, however, he urged the newspapers to “be fully aware of their ultimate responsibilities” to the country when deciding what to print.

Because Burger and Blackmun joined Harlan’s opinion, it should be viewed as the main dissent. After noting his displeasure with the speed of the case, Harlan listed a series of important questions raised which required more time to answer adequately. Forced to reach the merits, he relied on the same quote from Representative (later Chief Justice) John Marshall that had been central to Curtiss-Wright, that “the President is the sole organ of the nation in its external relations and its sole representative with foreign nations.” If so, the judiciary’s review should be limited to determining whether the subject matter is within the president’s foreign relations power and whether the decision that publication would irreparably damage national security was made personally by the head of the appropriate Cabinet department. One critic of this rule points out the inherent conflict “of effectively delegating the power to restrict public access to information relating to current policies to those who have the greatest interest in maintaining those policies.”
With the injunctions lifted, the newspapers completed their series after which the Times published a book version. However, the night before the Supreme Court decision, Senator Mike Gravel, having obtained much of the Papers from Ellsberg, made them available to the media at a hearing of his Subcommittee on Buildings and Grounds. Because the hearing was official business, Gravel had congressional immunity under Article I Section 6.

Although the Times called the decision a “ringing victory for freedom,” the Post expressed reservations about its narrowness as well as White’s suggestion that the newspapers be criminally prosecuted. In fact, the immediate impact turned out to be far less than many had hoped or feared. The government declined to prosecute those who published the Papers. Despite selling a million copies, the Times book failed to generate much additional debate about the Vietnam War. President Nixon’s July 15 announcement of his acceptance of China’s invitation to visit as a first step toward normalizing relations between the two countries both demonstrated that those negotiations had not been harmed by the Pentagon Papers publication and shoved any remaining discussion of the Papers out of the headlines. When the government published its twelve volume edition of the Papers in late September, only 500 copies were sold. Senator Gravel’s version, published by Beacon Press, sold only a tenth of its twenty-thousand copy printing.
Years later, those who had argued for the government in court claimed at least a partial victory. According to Seymour, in practice the government prevailed because the material that it had claimed would damage national security was not published by the Times or Post. “In short,” he wrote in 1994, “the Government attorneys actually accomplished the results they were after -- halting the publication of the particular documents that presented a current threat to the nation’s welfare.” Similarly Griswold, while conceding that there no “trace of a threat to national security from the publication,” suggested that this was because “with minor exceptions, the newspapers did not print at the time any items about which the Government was concerned.” They failed to point out that this was primarily due to Ellsberg’s exclusions rather than the government’s lawsuit.
Just as the Supreme Court was deciding the case Ellsberg was arrested then indicted for violating the Espionage Act and theft of government property. When it was learned that the government had wiretapped one of his attorneys the trial was delayed for months until the Supreme Court allowed the case to resume. As the trial proceeded evidence of government misconduct including the burglary of Ellsberg’s psychiatrist’s office and a meeting with the trial court judge at President Nixon’s home to discuss the possibility of his nomination as FBI Director mounted, resulting in the dismissal of all charges.

As with the Steel Seizure decision, the Pentagon Papers ruling turned out to be more important as a rebuff to claims of presidential power than for its substance. Because the newspapers, more concerned with winning the case than establishing constitutional doctrine, had conceded the government’s right to prevent the publication of material extremely and immediately damaging to national security, the main question before the court was the factual one of whether the Papers presented such a danger. The Court’s failure to unite behind any more than its brief per curiam opinion, meant, as Louis Henkin wrote soon afterward, that “a majority is obtained for the judgment only on the narrowest grounds, and the result is explained and justified only in a most cryptic opinion.” Without explaining just what was required to meet the “heavy burden” against prior restraint, the Supreme Court provided little guidance for future courts to follow. Nor, except for Marshall, did any of the justices seriously address the question of whether the president has the inherent power to seek injunctions against publication from the courts.
These events do seem to have played a role in instigating the train of events that would cause Nixon’s resignation. At a June 30 meeting with Mitchell and Kissinger, Nixon suggested a campaign of leaks against Ellsberg “to destroy him in the press.” David Rudenstine believes that this was the beginning of a series of “decisions and actions that substantially contributed to Nixon’s downfall.” This would lead to the case that is the subject of our next chapter.
NOTES

New York Times Co. v. United States 403 US 713
Argued June 26, 1971. Decided June 30, 1971

Together with No. 1885, United States v. Washington Post Co. et al., on certiorari to the United States Court of Appeals for the District of Columbia Circuit.

PER CURIAM
We granted certiorari in these cases in which the United States seeks to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled "History of U.S. Decision?Making Process on Viet Nam Policy."
"Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); see also Near v. Minnesota, 283 U.S. 697 (1931). The Government "thus carries a heavy burden of showing justification for the imposition of such a restraint." Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971). The District Court for the Southern District of New York in the New York Times case and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit in the Washington Post case held that the Government had not met that burden. We agree.

The judgment of the Court of Appeals for the District of Columbia Circuit is therefore affirmed. The order of the Court of Appeals for the Second Circuit is reversed and the case is remanded with directions to enter a judgment affirming the judgment of the District Court for the Southern District of New York. The stays entered June 25, 1971, by the Court are vacated. The judgments shall issue forthwith.

MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring.
I adhere to the view that the Government's case against the Washington Post should have been dismissed and that the injunction against the New York Times should have been vacated without oral argument when the cases were first presented to this Court. I believe that every moment's continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment. In my view it is unfortunate that some of my Brethren are apparently willing to hold that the publication of news may sometimes be enjoined. Such a holding would make a shambles of the First Amendment.
Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country.

In seeking injunctions against these newspapers and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment. When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms. They especially feared that the new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people's freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of history. Madison and the other Framers of the First Amendment, able men that they were, wrote in language they earnestly believed could never be misunderstood: "Congress shall make no law . . . abridging the freedom . . . of the press . . . ." Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.
We are asked to hold that despite the First Amendment's emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of "national security." The Government does not even attempt to rely on any act of Congress. Instead it makes the bold and dangerously far?reaching contention that the courts should take it upon themselves to "make" a law abridging freedom of the press in the name of equity, presidential power and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law. To find that the President has "inherent power" to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make "secure." No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time.

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK joins, concurring.
While I join the opinion of the Court I believe it necessary to express my views more fully.
It should be noted at the outset that the First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech, or of the press." That leaves, in my view, no room for governmental restraint on the press.

There is, moreover, no statute barring the publication by the press of the material which the Times and the Post seek to use. Title 18 U. S. C. Section 793 (e) provides that "whoever having unauthorized possession of, access to, or control over any document, writing . . . or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates . . . the same to any person not entitled to receive it . . . shall be fined not more than $10,000 or imprisoned not more than ten years, or both."
The Government suggests that the word "communicates" is broad enough to encompass publication.
There are eight sections in the chapter on espionage and censorship. In three of those eight "publish" is specifically mentioned.
Thus it is apparent that Congress was capable of and did distinguish between publishing and communication in the various sections of the Espionage Act.
The other evidence that Section 793 does not apply to the press is a rejected version of Section 793. That version read: "During any national emergency resulting from a war to which the United States is a party, or from threat of such a war, the President may, by proclamation, declare the existence of such emergency and, by proclamation, prohibit the publishing or communicating of, or the attempting to publish or communicate any information relating to the national defense which, in his judgment, is of such character that it is or might be useful to the enemy." During the debates in the Senate the First Amendment was specifically cited and that provision was defeated.
Judge Gurfein's holding in the Times case that this Act does not apply to this case was therefore preeminently sound. Moreover, the Act of September 23, 1950, in amending 18 U. S. C. Section 793 states that:

Nothing in this Act shall be construed to authorize, require, or establish military or civilian censorship or in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States and no regulation shall be promulgated hereunder having that effect." 64 Stat. 987.

Thus Congress has been faithful to the command of the First Amendment in this area. So any power that the Government possesses must come from its "inherent power."
These disclosures may have a serious impact. But that is no basis for sanctioning a previous restraint on the press.
The Government says that it has inherent powers to go into court and obtain an injunction to protect the national interest, which in this case is alleged to be national security. Near v. Minnesota, 283 U.S. 697, repudiated that expansive doctrine in no uncertain terms.
The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information. It is common knowledge that the First Amendment was adopted against the widespread use of the common law of seditious libel to punish the dissemination of material that is embarrassing to the powers?that?be. The present cases will, I think, go down in history as the most dramatic illustration of that principle. A debate of large proportions goes on in the Nation over our posture in Vietnam. That debate antedated the disclosure of the contents of the present documents. The latter are highly relevant to the debate in progress.
Secrecy in government is fundamentally anti?democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. On public questions there should be "uninhibited, robust, and wide?open" debate. New York Times Co. v. Sullivan,376 U.S. 254, 269?270.
The stays in these cases that have been in effect for more than a week constitute a flouting of the principles of the First Amendment as interpreted in Near v. Minnesota.

MR. JUSTICE BRENNAN, concurring.
I write separately in these cases only to emphasize what should be apparent: that our judgments in the present cases may not be taken to indicate the propriety, in the future, of issuing temporary stays and restraining orders to block the publication of material sought to be suppressed by the Government. So far as I can determine, never before has the United States sought to enjoin a newspaper from publishing information in its possession. The relative novelty of the questions presented, the necessary haste with which decisions were reached, the magnitude of the interests asserted, and the fact that all the parties have concentrated their arguments upon the question whether permanent restraints were proper may have justified at least some of the restraints heretofore imposed in these cases. Certainly it is difficult to fault the several courts below for seeking to assure that the issues here involved were preserved for ultimate review by this Court. But even if it be assumed that some of the interim restraints were proper in the two cases before us, that assumption has no bearing upon the propriety of similar judicial action in the future. To begin with, there has now been ample time for reflection and judgment; whatever values there may be in the preservation of novel questions for appellate review may not support any restraints in the future. More important, the First Amendment stands as an absolute bar to the imposition of judicial restraints in circumstances of the kind presented by these cases.

The error that has pervaded these cases from the outset was the granting of any injunctive relief whatsoever, interim or otherwise. The entire thrust of the Government's claim throughout these cases has been that publication of the material sought to be enjoined "could," or "might," or "may" prejudice the national interest in various ways. But the First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result. Our cases, it is true, have indicated that there is a single, extremely narrow class of cases in which the First Amendment's ban on prior judicial restraint may be overridden. Our cases have thus far indicated that such cases may arise only when the Nation "is at war," Schenck v. United States, 249 U.S. 47, 52 (1919), during which times "no one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops." Near v. Minnesota, 283 U.S. 697, 716 (1931). Even if the present world situation were assumed to be tantamount to a time of war, or if the power of presently available armaments would justify even in peacetime the suppression of information that would set in motion a nuclear holocaust, in neither of these actions has the Government presented or even alleged that publication of items from or based upon the material at issue would cause the happening of an event of that nature. "The chief purpose of [the First Amendment's] guaranty [is] to prevent previous restraints upon publication." Near v. Minnesota. Thus, only governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order. In no event may mere conclusions be sufficient: for if the Executive Branch eeks judicial aid in preventing publication, it must inevitably submit the basis upon which that aid is sought to scrutiny by the judiciary. And therefore, every restraint issued in this case, whatever its form, has violated the First Amendment??and not less so because that restraint was justified as necessary to afford the courts an opportunity to examine the claim more thoroughly. Unless and until the Government has clearly made out its case, the First Amendment commands that no injunction may issue.

MR. JUSTICE STEWART, with whom MR. JUSTICE WHITE joins, concurring.
In the governmental structure created by our Constitution, the Executive is endowed with enormous power in the two related areas of national defense and international relations. This power, largely unchecked by the Legislative and Judicial branches, has been pressed to the very hilt since the advent of the nuclear missile age. For better or for worse, the simple fact is that a President of the United States possesses vastly greater constitutional independence in these two vital areas of power than does, say, a prime minister of a country with a parliamentary form of government.
In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry??in an informed and critical public opinion which alone can here protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For without an informed and free press there cannot be an enlightened people.
Yet it is elementary that the successful conduct of international diplomacy and the maintenance of an effective national defense require both confidentiality and secrecy. Other nations can hardly deal with this Nation in an atmosphere of mutual trust unless they can be assured that their confidences will be kept. And within our own executive departments, the development of considered and intelligent international policies would be impossible if those charged with their formulation could not communicate with each other freely, frankly, and in confidence. In the area of basic national defense the frequent need for absolute secrecy is, of course, self?evident.

I think there can be but one answer to this dilemma, if dilemma it be. The responsibility must be where the power is. If the Constitution gives the Executive a large degree of unshared power in the conduct of foreign affairs and the maintenance of our national defense, then under the Constitution the Executive must have the largely unshared duty to determine and preserve the degree of internal security necessary to exercise that power successfully. It is an awesome responsibility, requiring judgment and wisdom of a high order. I should suppose that moral, political, and practical considerations would dictate that a very first principle of that wisdom would be an insistence upon avoiding secrecy for its own sake. For when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self?protection or self?promotion. I should suppose, in short, that the hallmark of a truly effective internal security system would be the maximum possible disclosure, recognizing that secrecy can best be preserved only when credibility is truly maintained. But be that as it may, it is clear to me that it is the constitutional duty of the Executive??as a matter of sovereign prerogative and not as a matter of law as the courts know law??through the promulgation and enforcement of executive regulations, to protect the confidentiality necessary to carry out its responsibilities in the fields of international relations and national defense.
This is not to say that Congress and the courts have no role to play. Undoubtedly Congress has the power to enact specific and appropriate criminal laws to protect government property and preserve government secrets. Congress has passed such laws, and several of them are of very colorable relevance to the apparent circumstances of these cases. And if a criminal prosecution is instituted, it will be the responsibility of the courts to decide the applicability of the criminal law under which the charge is brought. Moreover, if Congress should pass a specific law authorizing civil proceedings in this field, the courts would likewise have the duty to decide the constitutionality of such a law as well as its applicability to the facts proved.

But in the cases before us we are asked neither to construe specific regulations nor to apply specific laws. We are asked, instead, to perform a function that the Constitution gave to the Executive, not the Judiciary. We are asked, quite simply, to prevent the publication by two newspapers of material that the Executive Branch insists should not, in the national interest, be published. I am convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to our Nation or its people. That being so, there can under the First Amendment be but one judicial resolution of the issues before us. I join the judgments of the Court.

MR. JUSTICE WHITE, with whom MR. JUSTICE STEWART joins, concurring.
I concur in today's judgments, but only because of the concededly extraordinary protection against prior restraints enjoyed by the press under our constitutional system. I do not say that in no circumstances would the First Amendment permit an injunction against publishing information about government plans or operations. Nor, after examining the materials the Government characterizes as the most sensitive and destructive, can I deny that revelation of these documents will do substantial damage to public interests. Indeed, I am confident that their disclosure will have that result. But I nevertheless agree that the United States has not satisfied the very heavy burden that it must meet to warrant an injunction against publication in these cases, at least in the absence of express and appropriately limited congressional authorization for prior restraints in circumstances such as these.

The Government's position is simply stated: The responsibility of the Executive for the conduct of the foreign affairs and for the security of the Nation is so basic that the President is entitled to an injunction against publication of a newspaper story whenever he can convince a court that the information to be revealed threatens "grave and irreparable" injury to the public interest; and the injunction should issue whether or not the material to be published is classified, whether or not publication would be lawful under relevant criminal statutes enacted by Congress, and regardless of the circumstances by which the newspaper came into possession of the information.
At least in the absence of legislation by Congress, based on its own investigations and findings, I am quite unable to agree that the inherent powers of the Executive and the courts reach so far as to authorize remedies having such sweeping potential for inhibiting publications by the press. Much of the difficulty inherent in the "grave and irreparable danger” standard suggested by the United States. If the United States were to have judgment under such a standard in these cases, our decision would be of little guidance to other courts in other cases, for the material at issue here would not be available from the Court's opinion or from public records, nor would it be published by the press. Indeed, even today where we hold that the United States has not met its burden, the material remains sealed in court records and it is properly not discussed in today's opinions. Moreover, because the material poses substantial dangers to national interests and because of the hazards of criminal sanctions, a responsible press may choose never to publish the more sensitive materials. To sustain the Government in these cases would start the courts down a long and hazardous road that I am not willing to travel, at least without congressional guidance and direction.

It is not easy to reject the proposition urged by the United States and to deny relief on its good?faith claims in these cases that publication will work serious damage to the country. But that discomfiture is considerably dispelled by the infrequency of prior?restraint cases. Normally, publication will occur and the damage be done before the Government has either opportunity or grounds for suppression. So here, publication has already begun and a substantial part of the threatened damage has already occurred. The fact of a massive breakdown in security is known, access to the documents by many unauthorized people is undeniable, and the efficacy of equitable relief against these or other newspapers to avert anticipated damage is doubtful at best.
What is more, terminating the ban on publication of the relatively few sensitive documents the Government now seeks to suppress does not mean that the law either requires or invites newspapers or others to publish them or that they will be immune from criminal action if they do. Prior restraints require an unusually heavy justification under the First Amendment; but failure by the Government to justify prior restraints does not measure its constitutional entitlement to a conviction for criminal publication. That the Government mistakenly chose to proceed by injunction does not mean that it could not successfully proceed in another way.
When the Espionage Act was under consideration in 1917, Congress eliminated from the bill a provision that would have given the President broad powers in time of war to proscribe, under threat of criminal penalty, the publication of various categories of information related to the national defense. Congress at that time was unwilling to clothe the President with such far?reaching powers to monitor the press, and those opposed to this part of the legislation assumed that a necessary concomitant of such power was the power to "filter out the news to the people through some man." 55 Cong. Rec. 2008 (remarks of Sen. Ashurst). However, these same members of Congress appeared to have little doubt that newspapers would be subject to criminal prosecution if they insisted on publishing information of the type Congress had itself determined should not be revealed. Senator Ashurst, for example, was quite sure that the editor of such a newspaper "should be punished if he did publish information as to the movements of the fleet, the troops, the aircraft, the location of powder factories, the location of defense works, and all that sort of thing."

The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797 makes it a crime to publish certain photographs or drawings of military installations. Section 798, also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems or communication intelligence activities of the United States as well as any information obtained from communication intelligence operations. If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.
It is thus clear that Congress has addressed itself to the problems of protecting the security of the country and the national defense from unauthorized disclosure of potentially damaging information. It has not, however, authorized the injunctive remedy against threatened publication. It has apparently been satisfied to rely on criminal sanctions and their deterrent effect on the responsible as well as the irresponsible press. I am not, of course, saying that either of these newspapers has yet committed a crime or that either would commit a crime if it published all the material now in its possession. That matter must await resolution in the context of a criminal proceeding if one is instituted by the United States. In that event, the issue of guilt or innocence would be determined by procedures and standards quite different from those that have purported to govern these injunctive proceedings.

MR. JUSTICE MARSHALL, concurring.

The Government contends that the only issue in these cases is whether in a suit by the United States, "the First Amendment bars a court from prohibiting a newspaper from publishing material whose disclosure would pose a 'grave and immediate danger to the security of the United States.'" With all due respect, I believe the ultimate issue in these cases is even more basic than the one posed by the Solicitor General. The issue is whether this Court or the Congress has the power to make law.
In these cases there is no problem concerning the President's power to classify information as "secret" or "top secret." Congress has specifically recognized Presidential authority, which has been formally exercised in Exec. Order 10501 (1953), to classify documents and information. Nor is there any issue here regarding the President's power as Chief Executive and Commander in Chief to protect national security by disciplining employees who disclose information and by taking precautions to prevent leaks.
The problem here is whether in these particular cases the Executive Branch has authority to invoke the equity jurisdiction of the courts to protect what it believes to be the national interest. The Government argues that in addition to the inherent power of any government to protect itself, the President's power to conduct foreign affairs and his position as Commander in Chief give him authority to impose censorship on the press to protect his ability to deal effectively with foreign nations and to conduct the military affairs of the country. Of course, it is beyond cavil that the President has broad powers by virtue of his primary responsibility for the conduct of our foreign affairs and his position as Commander in Chief. And in some situations it may be that under whatever inherent powers the Government may have, as well as the implicit authority derived from the President's mandate to conduct foreign affairs and to act as Commander in Chief, there is a basis for the invocation of the equity jurisdiction of this Court as an aid to prevent the publication of material damaging to "national security," however that term may be defined.

It would, however, be utterly inconsistent with the concept of separation of powers for this Court to use its power of contempt to prevent behavior that Congress has specifically declined to prohibit. There would be a similar damage to the basic concept of these co?equal branches of Government if when the Executive Branch has adequate authority granted by Congress to protect "national security" it can choose instead to invoke the contempt power of a court to enjoin the threatened conduct. The Constitution provides that Congress shall make laws, the President execute laws, and courts interpret laws. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). It did not provide for government by injunction in which the courts and the Executive Branch can "make law" without regard to the action of Congress. It may be more convenient for the Executive Branch if it need only convince a judge to prohibit conduct rather than ask the Congress to pass a law, and it may be more convenient to enforce a contempt order than to seek a criminal conviction in a jury trial. Moreover, it may be considered politically wise to get a court to share the responsibility for arresting those who the Executive Branch has probable cause to believe are violating the law. But convenience and political considerations of the moment do not justify a basic departure from the principles of our system of government. In these cases we are not faced with a situation where Congress has failed to provide the Executive with broad power to protect the Nation from disclosure of damaging state secrets. Congress has on several occasions given extensive consideration to the problem of protecting the military and strategic secrets of the United States. This consideration has resulted in the enactment of statutes making it a crime to receive, disclose, communicate, withhold, and publish certain documents, photographs, instruments, appliances, and information.

If the Government had attempted to show that there was no effective remedy under traditional criminal law, it would have had to show that there is no arguably applicable statute. Of course, at this stage this Court could not and cannot determine whether there has been a violation of a particular statute or decide the constitutionality of any statute. Whether a good?faith prosecution could have been instituted under any statute could, however, be determined.
Even if it is determined that the Government could not in good faith bring criminal prosecutions against the New York Times and the Washington Post, it is clear that Congress has specifically rejected passing legislation that would have clearly given the President the power he seeks here and made the current activity of the newspapers unlawful. When Congress specifically declines to make conduct unlawful it is not for this Court to redecide those issues??to overrule Congress. See Youngstown Sheet & Tube Co. v. Sawyer,343 U.S. 579 (1952).
On at least two occasions Congress has refused to enact legislation that would have made the conduct engaged in here unlawful and given the President the power that he seeks in this case. In 1917 during the debate over the original Espionage Act, Congress rejected a proposal to give the President in time of war or threat of war authority to directly prohibit by proclamation the publication of information relating to national defense that might be useful to the enemy.
Congress rejected this proposal after war against Germany had been declared even though many believed that there was a grave national emergency and that the threat of security leaks and espionage was serious. The Executive Branch has not gone to Congress and requested that the decision to provide such power be reconsidered. Instead the Executive Branch comes to this Court and asks that it be granted the power Congress refused to give.

In 1957 the United States Commission on Government Security found that "airplane journals, scientific periodicals, and even the daily newspaper have featured articles containing information and other data which should have been deleted in whole or in part for security reasons." In response to this problem the Commission proposed that "Congress enact legislation making it a crime for any person willfully to disclose without proper authorization, for any purpose whatever, information classified 'secret' or 'top secret,' knowing, or having reasonable grounds to believe, such information to have been so classified." After substantial floor discussion on the proposal, it was rejected. If the proposal that Sen. Cotton championed on the floor had been enacted, the publication of the documents involved here would certainly have been a crime. Congress refused, however, to make it a crime. The Government is here asking this Court to remake that decision. This Court has no such power.
Either the Government has the power under statutory grant to use traditional criminal law to protect the country or, if there is no basis for arguing that Congress has made the activity a crime, it is plain that Congress has specifically refused to grant the authority the Government seeks from this Court. In either case this Court does not have authority to grant the requested relief. It is not for this Court to fling itself into every breach perceived by some Government official nor is it for this Court to take on itself the burden of enacting law, especially a law that Congress has refused to pass.

MR. CHIEF JUSTICE BURGER, dissenting.

So clear are the constitutional limitations on prior restraint against expression, that from the time of Near v. Minnesota, 283 U.S. 697 (1931), until recently in Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), we have had little occasion to be concerned with cases involving prior restraints against news reporting on matters of public interest. There is, therefore, little variation among the members of the Court in terms of resistance to prior restraints against publication. Adherence to this basic constitutional principle, however, does not make these cases simple. In these cases, the imperative of a free and unfettered press comes into collision with another imperative, the effective functioning of a complex modern government and specifically the effective exercise of certain constitutional powers of the Executive. Only those who view the First Amendment as an absolute in all circumstances??a view I respect, but reject??can find such cases as these to be simple or easy.
These cases are not simple for another and more immediate reason. We do not know the facts of the cases. No District Judge knew all the facts. No Court of Appeals judge knew all the facts. No member of this Court knows all the facts.
Why are we in this posture, in which only those judges to whom the First Amendment is absolute and permits of no restraint in any circumstances or for any reason, are really in a position to act?
I suggest we are in this posture because these cases have been conducted in unseemly haste. MR. JUSTICE HARLAN covers the chronology of events demonstrating the hectic pressures under which these cases have been processed and I need not restate them. The prompt setting of these cases reflects our universal abhorrence of prior restraint. But prompt judicial action does not mean unjudicial haste.
Here, moreover, the frenetic haste is due in large part to the manner in which the Times proceeded from the date it obtained the purloined documents. It seems reasonably clear now that the haste precluded reasonable and deliberate judicial treatment of these cases and was not warranted. The precipitate action of this Court aborting trials not yet completed is not the kind of judicial conduct that ought to attend the disposition of a great issue.

The newspapers make a derivative claim under the First Amendment; they denominate this right as the public "right to know"; by implication, the Times asserts a sole trusteeship of that right by virtue of its journalistic "scoop." The right is asserted as an absolute. Of course, the First Amendment right itself is not an absolute, as Justice Holmes so long ago pointed out in his aphorism concerning the right to shout "fire" in a crowded theater if there was no fire. There are other exceptions, some of which Chief Justice Hughes mentioned by way of example in Near v. Minnesota. There are no doubt other exceptions no one has had occasion to describe or discuss. Conceivably such exceptions may be lurking in these cases and would have been flushed had they been properly considered in the trial courts, free from unwarranted deadlines and frenetic pressures. An issue of this importance should be tried and heard in a judicial atmosphere conducive to thoughtful, reflective deliberation, especially when haste, in terms of hours, is unwarranted in light of the long period the Times, by its own choice, deferred publication.
It is not disputed that the Times has had unauthorized possession of the documents for three to four months, during which it has had its expert analysts studying them, presumably digesting them and preparing the material for publication. During all of this time, the Times, presumably in its capacity as trustee of the public's "right to know," has held up publication for purposes it considered proper and thus public knowledge was delayed. No doubt this was for a good reason; the analysis of 7,000 pages of complex material drawn from a vastly greater volume of material would inevitably take time and the writing of good news stories takes time. But why should the United States Government, from whom this information was illegally acquired by someone, along with all the counsel, trial judges, and appellate judges be placed under needless pressure? After these months of deferral, the alleged "right to know" has somehow and suddenly become a right that must be vindicated instanter.

Would it have been unreasonable, since the newspaper could anticipate the Government's objections to release of secret material, to give the Government an opportunity to review the entire collection and determine whether agreement could be reached on publication? Stolen or not, if security was not in fact jeopardized, much of the material could no doubt have been declassified, since it spans a period ending in 1968. With such an approach??one that great newspapers have in the past practiced and stated editorially to be the duty of an honorable press??the newspapers and Government might well have narrowed the area of disagreement as to what was and was not publishable, leaving the remainder to be resolved in orderly litigation, if necessary. To me it is hardly believable that a newspaper long regarded as a great institution in American life would fail to perform one of the basic and simple duties of every citizen with respect to the discovery or possession of stolen property or secret government documents. That duty, I had thought??perhaps naively??was to report forthwith, to responsible public officers. This duty rests on taxi drivers, Justices, and the New York Times. The course followed by the Times, whether so calculated or not, removed any possibility of orderly litigation of the issues. If the action of the judges up to now has been correct, that result is sheer happenstance.
Our grant of the writ of certiorari before final judgment in the Times case aborted the trial in the District Court before it had made a complete record pursuant to the mandate of the Court of Appeals for the Second Circuit.

The consequence of all this melancholy series of events is that we literally do not know what we are acting on. As I see it, we have been forced to deal with litigation concerning rights of great magnitude without an adequate record, and surely without time for adequate treatment either in the prior proceedings or in this Court. It is interesting to note that counsel on both sides, in oral argument before this Court, were frequently unable to respond to questions on factual points. Not surprisingly they pointed out that they had been working literally "around the clock" and simply were unable to review the documents that give rise to these cases and were not familiar with them. This Court is in no better posture. I agree generally with MR. JUSTICE HARLAN and MR. JUSTICE BLACKMUN but I am not prepared to reach the merits.
I would affirm the Court of Appeals for the Second Circuit and allow the District Court to complete the trial aborted by our grant of certiorari, meanwhile preserving the status quo in the Post case. I would direct that the District Court on remand give priority to the Times case to the exclusion of all other business of that court but I would not set arbitrary deadlines.

MR. JUSTICE HARLAN, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, dissenting.
These cases forcefully call to mind the wise admonition of Mr. Justice Holmes, dissenting in Northern Securities Co. v. United States, 193 U.S. 197, 400?401 (1904):
"Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend."

With all respect, I consider that the Court has been almost irresponsibly feverish in dealing with these cases.

Both the Court of Appeals for the Second Circuit and the Court of Appeals for the District of Columbia Circuit rendered judgment on June 23. The New York Times' petition for certiorari, its motion for accelerated consideration thereof, and its application for interim relief were filed in this Court on June 24 at about 11 a. m. The application of the United States for interim relief in the Post case was also filed here on June 24 at about 7:15 p. m. This Court's order setting a hearing before us on June 26 at 11 a. m., a course which I joined only to avoid the possibility of even more peremptory action by the Court, was issued less than 24 hours before. The record in the Post case was filed with the Clerk shortly before 1 p. m. on June 25; the record in the Times case did not arrive until 7 or 8 o'clock that same night. The briefs of the parties were received less than two hours before argument on June 26.
This frenzied train of events took place in the name of the presumption against prior restraints created by the First Amendment. Due regard for the extraordinarily important and difficult questions involved in these litigations should have led the Court to shun such a precipitate timetable. In order to decide the merits of these cases properly, some or all of the following questions should have been faced:
1. Whether the Attorney General is authorized to bring these suits in the name of the United States. This question involves as well the construction and validity of a singularly opaque statute??the Espionage Act, 18 U. S. C. Section 793 (e).
2. Whether the First Amendment permits the federal courts to enjoin publication of stories which would present a serious threat to national security.
3. Whether the threat to publish highly secret documents is of itself a sufficient implication of national security to justify an injunction on the theory that regardless of the contents of the documents harm enough results simply from the demonstration of such a breach of secrecy.
4. Whether the unauthorized disclosure of any of these particular documents would seriously impair the national security.
5. What weight should be given to the opinion of high officers in the Executive Branch of the Government with respect to questions 3 and 4.

6. Whether the newspapers are entitled to retain and use the documents notwithstanding the seemingly uncontested facts that the documents, or the originals of which they are duplicates, were purloined from the Government's possession and that the newspapers received them with knowledge that they had been feloniously acquired.
7. Whether the threatened harm to the national security or the Government's possessory interest in the documents justifies the issuance of an injunction against publication in light of ??
a. The strong First Amendment policy against prior restraints on publication;
b. The doctrine against enjoining conduct in violation of criminal statutes; and
c. The extent to which the materials at issue have apparently already been otherwise disseminated.
These are difficult questions of fact, of law, and of judgment; the potential consequences of erroneous decision are enormous. The time which has been available to us, to the lower courts, and to the parties has been wholly inadequate for giving these cases the kind of consideration they deserve. It is a reflection on the stability of the judicial process that these great issues??as important as any that have arisen during my time on the Court??should have been decided under the pressures engendered by the torrent of publicity that has attended these litigations from their inception.
Forced as I am to reach the merits of these cases, I dissent from the opinion and judgments of the Court. Within the severe limitations imposed by the time constraints under which I have been required to operate, I can only state my reasons in telescoped form, even though in different circumstances I would have felt constrained to deal with the cases in the fuller sweep indicated above.

It is a sufficient basis for affirming the Court of Appeals for the Second Circuit in the Times litigation to observe that its order must rest on the conclusion that because of the time elements the Government had not been given an adequate opportunity to present its case to the District Court. At the least this conclusion was not an abuse of discretion.
In the Post litigation the Government had more time to prepare; this was apparently the basis for the refusal of the Court of Appeals for the District of Columbia Circuit on rehearing to conform its judgment to that of the Second Circuit. But I think there is another and more fundamental reason why this judgment cannot stand??a reason which also furnishes an additional ground for not reinstating the judgment of the District Court in the Times litigation, set aside by the Court of Appeals. It is plain to me that the scope of the judicial function in passing upon the activities of the Executive Branch of the Government in the field of foreign affairs is very narrowly restricted. This view is, I think, dictated by the concept of separation of powers upon which our constitutional system rests.
In a speech on the floor of the House of Representatives, Chief Justice John Marshall, then a member of that body, stated:
"The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." 10 Annals of Cong. 613 (1800).

From that time, shortly after the founding of the Nation, to this, there has been no substantial challenge to this description of the scope of executive power. SeeUnited States v. Curtiss?Wright Corp., 299 U.S. 304, 319?321 (1936).
From this constitutional primacy in the field of foreign affairs, it seems to me that certain conclusions necessarily follow. Some of these were stated concisely by President Washington, declining the request of the House of Representatives for the papers leading up to the negotiation of the Jay Treaty:

"The nature of foreign negotiations requires caution, and their success must often depend on secrecy; and even when brought to a conclusion a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic; for this might have a pernicious influence on future negotiations, or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers."

The power to evaluate the "pernicious influence" of premature disclosure is not, however, lodged in the Executive alone. I agree that, in performance of its duty to protect the values of the First Amendment against political pressures, the judiciary must review the initial Executive determination to the point of satisfying itself that the subject matter of the dispute does lie within the proper compass of the President's foreign relations power. Moreover, the judiciary may properly insist that the determination that disclosure of the subject matter would irreparably impair the national security be made by the head of the Executive Department concerned??here the Secretary of State or the Secretary of Defense??after actual personal consideration by that officer. This safeguard is required in the analogous area of executive claims of privilege for secrets of state.
But in my judgment the judiciary may not properly go beyond these two inquiries and redetermine for itself the probable impact of disclosure on the national security.
Even if there is some room for the judiciary to override the executive determination, it is plain that the scope of review must be exceedingly narrow. I can see no indication in the opinions of either the District Court or the Court of Appeals in the Post litigation that the conclusions of the Executive were given even the deference owing to an administrative agency, much less that owing to a co?equal branch of the Government operating within the field of its constitutional prerogative.

Accordingly, I would vacate the judgment of the Court of Appeals for the District of Columbia Circuit on this ground and remand the case for further proceedings in the District Court. Before the commencement of such further proceedings, due opportunity should be afforded the Government for procuring from the Secretary of State or the Secretary of Defense or both an expression of their views on the issue of national security. The ensuing review by the District Court should be in accordance with the views expressed in this opinion. And for the reasons stated above I would affirm the judgment of the Court of Appeals for the Second Circuit.
Pending further hearings in each case conducted under the appropriate ground rules, I would continue the restraints on publication. I cannot believe that the doctrine prohibiting prior restraints reaches to the point of preventing courts from maintaining the status quo long enough to act responsibly in matters of such national importance as those involved here.

MR. JUSTICE BLACKMUN, dissenting.
At this point the focus is on only the comparatively few documents specified by the Government as critical. So far as the other material??vast in amount??is concerned, let it be published and published forthwith if the newspapers, once the strain is gone and the sensationalism is eased, still feel the urge so to do.
The New York Times clandestinely devoted a period of three months to examining the 47 volumes that came into its unauthorized possession. Once it had begun publication of material from those volumes, the New York case now before us emerged. It immediately assumed, and ever since has maintained, a frenetic pace and character. Seemingly, once publication started, the material could not be made public fast enough. Seemingly, from then on, every deferral or delay, by restraint or otherwise, was abhorrent and was to be deemed violative of the First Amendment and of the public's "right immediately to know." Yet that newspaper stood before us at oral argument and professed criticism of the Government for not lodging its protest earlier than by a Monday telegram following the initial Sunday publication.
The District of Columbia case is much the same.

Two federal district courts, two United States courts of appeals, and this Court??within a period of less than three weeks from inception until today??have been pressed into hurried decision of profound constitutional issues on inadequately developed and largely assumed facts without the careful deliberation that, one would hope, should characterize the American judicial process. There has been much writing about the law and little knowledge and less digestion of the facts. In the New York case the judges, both trial and appellate, had not yet examined the basic material when the case was brought here. In the District of Columbia case, little more was done, and what was accomplished in this respect was only on required remand, with the Washington Post, on the excuse that it was trying to protect its source of information, initially refusing to reveal what material it actually possessed, and with the District Court forced to make assumptions as to that possession.
With such respect as may be due to the contrary view, this, in my opinion, is not the way to try a lawsuit of this magnitude and asserted importance. It is not the way for federal courts to adjudicate, and to be required to adjudicate, issues that allegedly concern the Nation's vital welfare. The country would be none the worse off were the cases tried quickly, to be sure, but in the customary and properly deliberative manner. The most recent of the material, it is said, dates no later than 1968, already about three years ago, and the Times itself took three months to formulate its plan of procedure and, thus, deprived its public for that period.

The First Amendment, after all, is only one part of an entire Constitution. Article II of the great document vests in the Executive Branch primary power over the conduct of foreign affairs and places in that branch the responsibility for the Nation's safety. Each provision of the Constitution is important, and I cannot subscribe to a doctrine of unlimited absolutism for the First Amendment at the cost of downgrading other provisions. First Amendment absolutism has never commanded a majority of this Court. What is needed here is a weighing, upon properly developed standards, of the broad right of the press to print and of the very narrow right of the Government to prevent. Such standards are not yet developed. The parties here are in disagreement as to what those standards should be. But even the newspapers concede that there are situations where restraint is in order and is constitutional.
I therefore would remand these cases to be developed expeditiously, of course, but on a schedule permitting the orderly presentation of evidence from both sides, with the use of discovery, if necessary, as authorized by the rules, and with the preparation of briefs, oral argument, and court opinions of a quality better than has been seen to this point. In making this last statement, I criticize no lawyer or judge. I know from past personal experience the agony of time pressure in the preparation of litigation. But these cases and the issues involved and the courts, including this one, deserve better than has been produced thus far.
The Court, however, decides the cases today the other way. I therefore add one final comment.

I strongly urge, and sincerely hope, that these two newspapers will be fully aware of their ultimate responsibilities to the United States of America. Judge Wilkey, dissenting in the District of Columbia case, after a review of only the affidavits before his court (the basic papers had not then been made available by either party), concluded that there were a number of examples of documents that, if in the possession of the Post, and if published, "could clearly result in great harm to the nation," and he defined "harm" to mean "the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate . . . ." I, for one, have now been able to give at least some cursory study not only to the affidavits, but to the material itself. I regret to say that from this examination I fear that Judge Wilkey's statements have possible foundation. I therefore share his concern. I hope that damage has not already been done. If, however, damage has been done, and if, with the Court's action today, these newspapers proceed to publish the critical documents and there results therefrom "the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate," to which list I might add the factors of prolongation of the war and of further delay in the freeing of United States prisoners, then the Nation's people will know where the responsibility for these sad consequences rests.