The opinion of the court was delivered by: GURFEIN
The United States seeks a temporary restraining order and a preliminary injunction against The New York Times, its publisher and other officers and employees to restrain them from further dissemination or disclosure of certain alleged top secret or secret documents of the United States referred to in a verified complaint filed therewith.
I have granted the order to show cause as to why a preliminary injunction against the defendants should not be entered and have made it returnable Friday morning, June 18. Preliminarily thereto the Government has requested a temporary restraining order and also a direction from this Court to require the defendants to deliver to the Court certain documents and other tangible evidence to be held by the Court pending final determination of the cause. At this stage of the proceeding I do not direct The New York Times or the other defendants to produce the documents pending the outcome of the litigation. I do not believe that The New York Times will wilfully disregard the spirit of our restraining order. I am restraining The New York Times and the other defendants, however, from publishing or further disseminating or disclosing the documents consisting of 47 volumes entitled "HISTORY OF UNITED STATES DECISION MAKING PROCESS ON VIETNAM POLICY" covering the period 1945-67, prepared in 1967-1968 at the direction of the then Secretary of Defense Robert McNamara, the internal documents from which the aforesaid documents were prepared, and a one volume "COMMAND AND CONTROL STUDY OF THE TONKIN GULF INCIDENT" prepared in 1965 for the Joint Chiefs of Staff by the Weapons System Evaluation Group of the United States Department of Defense, pending the hearing of the Government's application for a preliminary injunction.
The questions raised by this action are serious and fundamental. They involve not only matters of procedure, but matters of substance and presumptively of constitutional implication as well. I have, in effect, been asked by the parties to pass upon the merits of the litigation upon the arguments made on the order to show cause. I believe that the matter is so important and so involved with the history of the relationship between the security of the Government and a free press that a more thorough briefing than the parties have had an opportunity to do is required. I have granted the restraining order because in my opinion any temporary harm that may result from not publishing during the pendency of the application for a preliminary injunction is far outweighed by the irreparable harm that could be done to the interests of the United States Government if it should ultimately prevail. I have intentionally expressed no opinion on the merits, but I believe this matter is brought in good faith by the United States and that on the balancing of interests mentioned, both parties deserve a full consideration of the issues raised.
Accordingly, the restraining order will be in effect until Saturday afternoon at one o'clock unless the Court directs otherwise.
The parties are requested to brief as thoroughly as possible the points adverted to in the oral argument by 5 p.m. Thursday, June 17, 1971.
On Motion for Preliminary Injunction
On June 12, June 13 and June 14, 1971 The New York Times published summaries and portions of the text of two documents -- certain volumes from a 1968 Pentagon study relating to Vietnam and a summary of a 1965 Defense Department study relating to the Tonkin Gulf incident. The United States sues to enjoin the Times from "further dissemination, disclosure or divulgence" of materials contained in the 1968 study of the decision making process with respect to Vietnam and the summary of the 1965 Tonkin Gulf study. In its application for a temporary restraining order the United States also asked the Court to order the Times to furnish to the Court all the documents involved so that they could be impounded pending a determination. On June 15 upon the argument of the order to show cause the Court entered a temporary restraining order against The New York Times in substance preventing the further publication until a determination by the Court upon the merits of the Government's application for a preliminary injunction. The Court at that time, in the absence of any evidence, refused to require the documents to be impounded.
The Government contends that the documents still unpublished and the information in the possession of the Times involve a serious breach of the security of the United States and that the further publication will cause "irreparable injury to the national defense."
The articles involved material that has been classified as Top Secret and Secret, although the Government concedes that these classifications are related to volumes rather than individual documents and that included within the volumes may be documents which should not be classified in such high categories. The documents involved are a 47 volume study entitled "HISTORY OF UNITED STATES DECISION MAKING PROCESS ON VIETNAM POLICY" and a document entitled "THE COMMAND AND CONTROL STUDY OF THE TONKIN GULF INCIDENT DONE BY THE DEFENSE DEPARTMENT'S WEAPONS SYSTEM EVALUATION GROUP IN 1965." There is no question that the documents are in the possession of the Times.
The issue of fact with respect to national security was resolved in the following manner. In view of the claim of the Government that testimony in support of its claim that publication of the documents would involve a serious security danger would in itself be dangerous the Court determined that under the "Secrets of State" doctrine an in camera proceeding should be held at which only the attorneys for each side, witnesses for the Government and two designated representatives of The New York Times would be present. It was believed that this would enable the Government to present its case forcefully and without restraint so that the accommodation of the national security interest with the rights of a free press could be determined with no holds barred. It was with reluctance that the Court granted a hearing from which the public was excluded, but it seemed that there was no other way to serve the needs of justice. My finding with respect to the testimony on security will be adverted to below.
1. This case is one of first impression. In the researches of both counsel and of the Court nobody has been able to find a case remotely resembling this one -- where a claim is made that national security permits a prior restraint on the publication of a newspaper. The Times in affidavits has indicated a number of situations in which classified information has been "leaked" to the press without adverse governmental or judicial action. It cites news stories and the memoirs of public officials who have used (shortly after the events) classified material in explaining their versions of the decision making process. They point out that no action has ever been taken against any such publication of "leaks." The Government on the other hand points out that there has never been an attempt to publish such a massive compilation of documents which is probably unique in the history of "leaks." The Vietnam study had been authorized by Secretary of Defense McNamara, continued under Secretary Clifford and finally delivered to Secretary of Defense Laird. The White House was not given a copy. The work was done by a group of historians, including certain persons on contract with the Government. It is actually called a "history." The documents in the Vietnam study relate to the period from 1945 to early 1968. There is no reference to any material subsequent to that date. The Tonkin Gulf incident analysis was prepared in 1965, six years ago. The Times contends that the material is historical and that the circumstance that it involves the decision making procedures of the Government is no different from the descriptions that have emerged in the writings of diarists and memoirists. The Government on the other hand contends that by reference to the totality of the studies an enemy might learn something about United States methods which he does not know, that references to past relationships with foreign governments might affect the conduct of our relations in the future and that the duty of public officials to advise their superiors frankly and freely in the decision making process would be impeded if it was believed that newspapers could with impunity publish such private information. These are indeed troublesome questions.
This case, in the judgment of the Court, was brought by the Government in absolute good faith to protect its security and not as a means of suppressing dissident or contrary political opinion. The issue is narrower -- as to whether and to what degree the alleged security of the United States may "chill" the right of newspapers to publish. That the attempt by the Government to restrain the Times is not an act of attempted precensorship as such is also made clear by the historic nature of the documents themselves. It has been publicly stated that the present Administration had adopted a new policy with respect to Vietnam. Prior policy must, therefore, ...