PENTAGON DOCUMENTS Newspaper attacks ban as unconstitutional

Press, Volume CXI, Issue 32635, 17 June 1971, Page 11

PENTAGON DOCUMENTS Newspaper attacks ban as unconstitutional

(NZTA.-Reuler—COPtJHOht) NEW YORK, June 16. The “New York Times,” temporarily enjoined from publishing material from a secret Pentagon study detailing United States involvement in the Vietnam war, today assailed the Attorney-General (Mr John) Mitchell) for “an unprecedented example of censorship.” Reacting to a temporary restraining order obtained by the Federal Government yesterday, the “New York Times” said in its editions today that it would “fight what we believe to be an unconstitutional prior restraint imposed by the Attorney-General.”

Under the Court order issued by Judge Murray Gurfein, the “New York Times” is forbidden from publishing any further material from the secret documents, at least until the Judge rules on the Government’s request for a permanent injunction.

Arguments on the Government’s motion are scheduled for Friday in a United States District Court in New York.

In granting the restraining order, Judge Gurfein did not rule on the merits of the case.

Harm weighed

But he said that the temporary harm done to the "New York Times” by his order “is far outweighed by the irreparable harm that could be done to the interests of the United States" if additional articles in the series were published while the case was before the Court.

But the “New York Times,” in its leading editorial, said that it felt that “once this material fell into our hands, it was not only in the inter-

ests of the American people to publish it but, even more emphatically, it would have been an abnegation of responsibility and a renunciation of our obligations under the First Amendment not to have published it. The First Amendment guarantees a free press. “Obviously, the ’Times’ would not have made this decision if there had been any reason to believe that publication would have endangered the life of a single American soldier or in any way threatened the security of our country or the peace of the world.”

‘lrreparable injury’ The Justice Department, in seeking the restraining order, had maintained that publication of further articles on the documents would cause “irreparable injury to the defence interests of the United States" and would cause "serious injuries ... on our foreign relations. . . .” It also contended that publication of the documents, classified as "top secret—sensitive,” violated a Federal anti-espionage statute. But the “New York Times,” asserting its right to publish the material under the First

Amendment to the Constitution, said, “Their publication could not conceivably damage American security interests, much less th* lives of Americans or Indo-Chinese. Govt classification “We therefore felt it'incumbent to take on ourselves the responsibility for their publication, and in doing so raise once again the question of the Government’s propen.

sity for over-classification and mis-classification of documents that by any reasonable scale of values have long since belonged in the public domain,” In the three articles that appeared, the “New York Times” dealt with: The clandestine warfare carried on against North Vietnam before the Gulf of Tonkin resolution in August of 1964. Covered the Johnson Administration’s decision to begin bombing of North Vietnam in February of 1965. Related President Johnson’s decision on April 1, 1965, to use American troops for offensive action in Vietnam because the Administration had decided that its bombing of North Vietnam was not going to forestall the collapse of South Vietnam.

Mr Mitchell turned to the courts after the “New York Times” refused to agree to cease further publication of the documenta which it had received from a still unknown source.

In related developments, the Justice Department disclosed that the F. 8.1. was investigating possible violations by the “New York Times” of criminal laws by publishing the secret documents, ano Senator Mike Mansfield, the Senate majority leader, announced that a Senate committee would hold hearings on how the United States be-

came involved in the Indo. China war regardless of the outcome of the present Utb gation. During yesterday’s court hearing, Professor Alexander Bickel of the Yale Law School, representing the “New York Times,” said that the Government’s injunction request marked the first time In the nation's history that a newspaper was being r». strained from publishing an article. Professor Bickel, who has been mentioned as a possible U.S. Supreme Court nominee, said that the Government's action was a “classic case of censorship," forbidden by the First Amendment“A newspaper exist* to publish, not to submit its publishing schedule to the United States Government." At the outset of the hearing, Judge Gurfein asked the “New York Times” to consent to a restraining order, but Professor Bickel refused on the ground that to do so would result in further Government attempts at censor* ship. Judge Gurfein then issued Che restraining order and set Friday for hearing of briefs by the “New York Times” and the Government. The “New York Times" could have immediately appealed against the Judge’s ruling, but, aware that appeals of restraining orders are rarely granted, the newspaper decided to argue the matter before Judge Gurfein on Friday when the temporary order will expire at 1 p.m. Judge’s options After Friday’s hearing, the Judge will have the option of continuing the restraining order, issuing a permanent injunction barring the “New York Times" from publishing any more of the secret documents, or vacating the temporary order and denying the Government's request for a permanent injunction, In its editorial in today’s editions, the "New York Times” said: “The documents in question belong to history. “We publish the documenta and related running account not to prove any debater’s point about the origins and development of American participation in the war, not to place the finger of blame on any individuals, civilian or military, but to present to the American public a history—admittedly incomplete—of decision-making at the highest levels of Government on one of the most vital issues that has ever affected 'our lives, our fortunes and our sacred honour* —an issue on which the American people and their duly elected representatives in Congress have been largely curtained off from the truth.”