WRESTLING WITH LEVIATHAN

...Eventually the Government was compelled to admit that two of the three "secret concepts" it had identified in Morland's article were already in the public domain — and the third, the Government said, was one that Morland got wrong...

...More to the point, the Government would be empowered to suppress details of the next nuclear power accident...

...that it would provide us with an extraordinary opportunity to raise basic issues of public policy — to talk not only about nuclear secrecy, censorship, and suppression, but about the criminal insanity of the nuclear arms race and its menacing half-brother, the nuclear power industry — and that we would be able to raise these issues with a far greater audience than we could ever hope to reach through the pages of this magazine...

...Yet it will continue to evade review until these defendants, another magazine, newspaper, or individual again forfeits — however temporarily — First Amendment rights to litigate the fundamental issues raised by the Atomic Energy Act and the injunctive relief the Government and the district court believe it provides...

...The Government's case — if it ever had a case — deteriorated rapidly...

...On September 13, our case was argued before a three-judge panel of the Seventh Circuit Court of Appeals in Chicago...

...And when it asked the court to dismiss the injunction against publication of Morland's article, the Justice Department also moved to declare the case "moot" and to preserve in perpetual secrecy some of the suppressed legal documents in the case We are vigorously resisting the Government's attempt to abort a ruling on the issues we have laid before the courts...

...Round-trip fare is about $1,800...

...IfThat the Atomic Energy Act of 1954 contained a secrecy provision that was astonishingly broad and vague and sweeping, conferring on the Government the authority to suppress all information (not just the Government's own information) pertaining to nuclear weapons, nuclear materials, and nuclear energy...

...Watch this space for Howard Mor-land's article, 'The H-Bomb Secret: How We Got It, Why We're Telling It.' " — The Progressive, May 1979 The case was called The United States of America vs...

...We were to encounter many more surprises in the next six months...

...Secretary of Defense Harold Brown delivered the same message in person...

...To the Government, of course, time and money are no object...

...We believe we have won a small but important victory in a continuing struggle...

...We were not prepared for its duration — it isn't over yet — or for the burdens it would impose on The Progressive's small staff...

...We received invaluable assistance from some dedicated nuclear scientists who did not necessarily agree with The Progressive's politics — or even with our calculated assault on the Government's mystique of secrecy — but who were outraged by the Government's unfounded assertions in the case...

...As the case progressed and the Government's arguments were effectively challenged by our attorneys (and by the increasingly publicized facts), the Government continuously shifted ground...

...Later, newspapers reported that a majority of the Department's lawyers working on the case had urged Attorney General Griffin Bell to drop it...

...We will somehow find the resources to sustain our struggle...

...that when the Government had attempted such censorship in the 1971 Pentagon Papers case, it had been decisively rebuffed by the Supreme Court...

...We will appeal Judge Warren's preliminary injunction to the Court of Appeals and, if necessary, to the Supreme Court...

...See "A Nation Beset by Confusion and Fear," by Ron McCrea, on Page 36 of this issue...

...It called ours "John Mitchell's dream case — the one the Nixon Administration was never lucky enough to get: a real First Amendment loser...

...We had other help...

...Their reaction, as Morland observed, was that of fraternity brothers confronted with an outsider who threatened to reveal the secret handshake...

...IfThat for all of these reasons, the Government's attempt to muzzle The Progressive was bound to be an acute embarrassment — not to The Progressive but to the Government itself...

...With this action, however, and the suit against the Daily Californian, it has demonstrated an apparently newfound willingness to use the sweeping provisions of the Act to do just that...

...On September 16, the Hansen letter was published in full by The Press Connection, a newspaper in Madison, Wisconsin...

...And then there were the nuclear "hobbyists," determined to prove that what the Government called "secret" was not secret at all...

...We think so too...

...And we will win...

...The reason for the dismissal was the publication of an article containing restricted data concerning thermonuclear weapons information by a newspaper in Madison, Wisconsin...

...The Secretaries of State, Defense, and Energy submitted to Judge Warren sworn affidavits which were, to put it gently, not in correspondence with the facts...

...There are in the record of this case more than twenty-five publications and broadcasts that have stated one or more of the three concepts the Government sought to protect in the context of thermonuclear weapons, yet the Government sought no injunction nor brought a criminal action...

...How these questions will be resolved remains to be determined as this issue of The Progressive goes to press...

...The Progressive, Inc., Erwin Knoll, Samuel Day Jr., and Howard Morland...

...One of the first and most disappointing was the devotion of many scientists — especially "liberal" scientists — to the mystique of secrecy which had apparently become, for them, an act of faith...

...Before the Government actually goes to court," I told my colleagues at The Progressive, "it will be seized by a spasm of sanity...

...Several months ago, in a conference room at The San Francisco Examiner, I listened incredulously as the editor of that newspaper's editorial page delivered an impassioned defense of censorship...

...Tom Fox of Madison and Paul Friedman of the Washington firm of White and Case, who represented Morland — worked heroically to defend the First Amendment, to challenge the constitutionality of the Atomic Energy Act, and to compile a factual record that demolished the Government's "national security" claims...

...There may have been others who helped prepare briefs and affidavits...

...Furthermore, the Government acknowledged that it had "mistakenly" declassified scores of documents containing information at least as "secret" as Morland's, and placed those documents on public library shelves...

...And there we made our first mistake: We thought the Government would recognize the realities and calculate the consequences...

...It was an uneven match...

...We were not prepared for the bizarre tactics and exotic arguments the Government was willing to pursue in court...

...Even after the Department of Energy had advised us that it would seek a court order to block publication of Morland's article, we thought it would reconsider and let common sense prevail...

...at Berkeley — barring it from publishing a letter that a nuclear "hobbyist," Chuck Hansen, had written to Senator Charles Percy of Illinois about The Progressive's case...

...Whatever the outcome, we believe we have already made it more difficult for the Government to mount its next assault on the First Amendment -— if only by making some Americans (and some of our colleagues in the media) more aware of the threat...

...But government lawyers, unlike most private attorneys, do not keep a record of their billable hours, so the true cost is impossible to pin down...

...We are in that struggle for the duration...

...that there was no way the Government could meet such a test with respect to Morland's article for The Progressive...

...The Washington Star reported: "It is virtually impossible to compute the cost of the Government's suit against The Progressive...

...the national legal staff of the American Civil Liberties Union, which represented the editors of this magazine...

...We had the Government licked from the beginning and we knew it...

...The Progressive's readers responded, as they always have, with moral and financial support...

...Until the United States brought this action, it had never formally invoked the Atomic Energy Act to enjoin or to punish political speech...

...The Department of Energy has spread the word that it has some of its own scientists under investigation...

...Like Judge Robert W. Warren, these self-anointed guardians of the Government's "secrets" had not read Morland's article, nor had they bothered to acquaint themselves with the facts...

...The late Heywood Broun, who fought his own battles against the arrogance of official power in the 1930s, once wrote, "The underdog can and will lick his weight in the wildcats of the world...

...See Ron Carbon's "Bonanza" on Page 66 of this issue...

...In the meantime, of course, the defendants will have lost their constitutional rights to a district court's injunction...

...Our lawyers had to be "cleared" by the Government to examine these secret filings, and could do so only under conditions that ranged from inconvenient to impossible...

...See Sam Day's article, "Scientists of Conscience: How The Progressive Managed to Find a Few," in the May 1979 issue...

...There was probably no need for them to go to all that trouble: Many of the mass media (though not all) proved themselves pathetically eager to support Government censorship...

...He issued a temporary restraining order against publication of Morland's article without even bothering to read the manuscript...

...we wanted to give the Government no pretext for avoiding a court decision on the constitutional and legal questions we had raised...

...Mark Sheehan, a Justice Department spokesman, said the commitment was 'not at all unusual' for an important case...

...All this we knew, and we assumed the Government knew it too...

...By the time our appeal was argued in the Seventh Circuit Court of Appeals in Chicago in mid-September, the Government had arrived at a novel and frightening notion — that "technical" information was not speech protected by the First Amendment...

...See Sam Day's "The Other Nuclear Weapons Club" on Page 32 of this issue...

...From the beginning of the case, legal briefs, affidavits, and exhibits — ours as well as the Government's — were heavily censored by the Government and excluded from the public record...

...As it became increasingly clear to us that we would win the case in the courts — and perhaps win a ruling that invalidated the secrecy provisions of the Atomic Energy Act — we began to suspect that the Government would seize on its first face-saving opportunity to drop the case and declare it "moot...

...the judges — who rebuffed a Government request to hold the hearing behind closed doors — were expected to hand down a decision within days or, at most, a few weeks...

...the Government's assertions were enough...

...that any competent reporter, any diligent researcher, and any capable spy could do what Morland did — and could probably do it better and faster if he had more scientific background than Morland had...

...that there was at least a strong likelihood that it would be found unconstitutional...

...Arbitrary decisions of the Government to invoke the statute or not may never be reviewed if the Government carefully chooses its cases...

...Our attorneys — The Progressive's law firm of LaFollette, Sinykin, Anderson, and Munson...

...In a brief submitted to the Court of Appeals on September 24, The Progressive's attorneys wrote: "This case clearly is capable of repetition both for these defendants and for others...

...But the case is not over...

...When a copy of Morland's article surfaced in Australia, two U.S...

...Under that ingenious doctrine, Sam Day suggested, the historic slogan "Fifty-four Forty or Fight" would not be protected speech...

...What was painfully clear to us apparently eluded them — that if the First Amendment could only be preserved by foregoing its protection, it was not merely in jeopardy...

...The Washington Post, which had heroically defended the First Amendment in the Pentagon Papers case, urged us to delete "voluntarily" those portions of Morland's article that the Government wanted to suppress...

...that this incredible statute had never been tested in the courts...

...Secretary of Energy James Schlesinger took to the telephone to warn editors of leading newspapers that they should not rise to the defense of the First Amendment in The Progressive"s case...

...we have won a small...

...We were scrupulously careful — we bent over backwards — to observe the injunction and the "protective order" issued by Judge Warren to prevent disclosure of "restricted data...

...We were surprised, too, by the lengths to which the Government was prepared to go to protect its nonexistent "secrets...

...When an anonymous caller told us he had a copy of Morland's manuscript and would arrange for its publication, we begged him not to do so...

...The Government's arguments for abrogating this nation's 200-year-old tradition against prior restraint were no less mind-boggling...

...We thought it would act in its own self-interest...

...that they had been published in books and journals and magazines and the Government's own reports...

...that the Court had ruled in 1971 that if a prior restraint on publication were ever permissible, it could only be sustained in circumstances where there was conclusive proof that publication would result in direct, immediate, irreversible harm to the United States...

...Shortly after the Government went into court against The Progressive, we began hearing rumors about disaffection in the Justice Department's ranks...

...On September 28, the Appeals Court vacated Judge Warren's injunction and left us free to publish Howard Morland's article in this issue of The Progressive...

...They did not lack for company in expressing those views...

...They were strictly enjoined from communicating any of these "restricted data" to us — the defendants — or from telling us what had transpired in closed sessions of the court...

...I was dead wrong...

...victory in a continuing struggle' We were not prepared for the costs of the case, which placed (and continue to place) an almost catastrophic strain on the meager resources of this magazine...

...Distinguished lawyers volunteered useful advice...

...Briefs filed by the Justice Department in U.S...

...On June 15, when we asked Judge Warren to lift the injunction he had imposed upon us, he issued a secret opinion which, at this writing, we have still not been permitted to read...

...On March 9, in a Federal courtroom in Milwaukee, the Government found a judge willing to take its "national security" claims on faith...

...Moreover, there will always be a very real danger that subsequent cases like this one will become 'moot' — either because the Government moves unilaterally to dismiss them at some point, because an article that has been restricted appears in another publication, or because the defendants lack the financial ability, the confidence, or the courage to litigate the case fully in the trial court or on appeal...

...Still, our initial assumptions proved to be correct: The case was an acute embarrassment to the Government, and we were well on the way to winning it in the courts...

...officials, William Grayson, an Energy Department physicist, and Keith Werhan, a Justice Department lawyer, flew to Australia to check the situation...

...The Justice Department, we were given to understand, was in the unhappy position of a reluctant lawyer serving a stubborn and vindictive client — the Department of Energy...

...Peter N. Bush, assistant general counsel of the Energy Department, said perhaps ten attorneys from his agency had worked on the case...

...IfThat no court in the United States had ever allowed the Government to commit an act of censorship on grounds of "national security...

...On September 15, the Government went into court in San Francisco to obtain a restraining order against a college newspaper — the Daily California...

...On September 17, the Justice Department announced that it "has decided to seek dismissal of the cases against the Daily Californian and Progressive magazine...

...As soon as the first press accounts of the Government's attempt at censorship appeared, we began receiving telegrams, telephone calls, and letters from leading luminaries of such organizations as the Federation of American Scientists and the Union of Concerned Scientists, urging us not to publish the article and not to contest the Government's unprecedented assault on the First Amendment...

...Their notion was that the First Amendment stopped where "national security" began...

...If I go down to the Rosebud Tavern this afternoon," he said, "and some drunken lieutenant colonel tells me the United States is about to land 100,000 Marines in Saudi Arabia to seize the oilfields, you're goddamn right I want the Government to stop me from printing it...

...Even among those who thought the Government's assault on the First Amendment was totally unwarranted, many implored us not to pursue our rights in the courts lest we "jeopardize the First Amendment" by an adverse court decision...

...Fred Graham, the legal correspondent for r CBS News, asserted categorically, "The Government will win this case...

...These cases also have provided ample evidence of the potential for the arbitrary and discriminatory use of the Act...

...The case began with the assertion that nuclear information was "data restricted at birth" — classified the instant it came into being, even if it was based entirely on public sources and on our own creative work...

...District Court and in the Court of Appeals carry the names of twelve Government lawyers...

...These were among the things we knew: IfThat the so-called secrets in Howard Morland's article weren't secrets at all — that they were known to thousands of people around the world...

...So did a number of other officials and "experts" enlisted by the Government...

...When it announced that it would "seek dismissal" of the cases against The Progressive and the Daily Californian, the Justice Department also announced that "the Criminal Division will undertake a preliminary inquiry to determine whether any prosecution is appropriate for violation of court orders in the two cases and the Atomic Energy Act...

...Some leading newspapers — The New York Times, The Boston Globe, The Chicago Tribune — joined in "friend-of-the-court" briefs in support of the First Amendment, and so did several dozen magazines and such organizations as the American Society of Newspaper Editors, the National Association of Broadcasters, and the Association of American Publishers...

...it was gone...