446 F.2d 1327 (D.C. Cir. 1971), 71-1487, United States v. Washington Post Co.

Docket Nº:71-1487.
Citation:446 F.2d 1327
Party Name:UNITED STATES of America, Appellant, v. The WASHINGTON POST COMPANY et al.
Case Date:June 23, 1971
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1327

446 F.2d 1327 (D.C. Cir. 1971)

UNITED STATES of America, Appellant,



No. 71-1487.

United States Court of Appeals, District of Columbia Circuit.

June 23, 1971

Argued June 23, 1971.

Rehearing Denied June 24, 1971.

Page 1328

Mr. Erwin N. Griswold, Sol. Gen. of the United States and Kevin T. Maroney, Atty., Department of Justice, for appellant. Messrs. Thomas A. Flannery, U.S. Atty., and Daniel J. McAuliffe, Atty., Department of Justice, were on the memorandum for appellant. Messrs. John A. Terry and Joseph M. Hannon, Asst. U.S. Attys., also entered appearances for appellant.

Mr. William R. Glendon, Washington, D.C., with whom Messrs. Roger A. Clark and Anthony F. Essaye, Washington, D.C., were on the brief, for appellees.

Congressman Bob Eckhardt, pro hac vice by special leave of court, with whom Mr. James H. Heller, Attorney, American Civil Liberties Union Fund of National Capital Area, was on the brief, on behalf of amici curiae Twenty-Seven Members of Congress, et al.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc.


This is an appeal by the United States from an order of the district court denying a preliminary injunction against the publication of material derived from a document entitled 'History of U.S. Decision-Making Process on Vietnam Policy'. We affirm the district court.

The district court denied the preliminary injunction after a hearing. By affidavits and the testimony of witnesses at the hearing the government attempted to demonstrate that the publication of the material in question should be restrained because it would gravely prejudice the defense interests of the United States or result in irreparable injury to the United States. The district court found that the government failed to sustain its burden. Specifically, the district court directed the government to present any document from the 'History' the disclosure of which in the government's judgment would irreparably harm the United States. The government's affidavits and testimony, presented largely in camera, discussed several of the documents. The district court found either that disclosure of those specific documents would not be harmful or that any harm resulting from disclosure would be insufficient to override First Amendment interests. Having examined the record made before the district court we agree with its conclusion. In our opinion the government's proof, judged by the standard suggested in Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), does not justify an injunction. 1

The vitality of the principle, that any prior restraint on publication comes into court under a heavy presumption against its constitutional validity, was recognized by the Supreme Court of the United States as recently as May 17, 1971. Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1970).

Our conclusion to affirm the denial of injunctive relief is fortified by the consideration that the massive character of the 'leak' which has occurred, and the disclosures already made by several newspapers, raise substantial doubt that effective relief of the kind sought by the government can be provided by the judiciary.

The government has requested a stay in order that it may present this matter to the Supreme Court of the United States. Accordingly, the stay previously entered is continued until 6:00 P.M., Friday, June 25, 1971.


On Petition for Rehearing and Modification of Decision


This is another phase of the Government's quest for injunctive relief against the publication by the Washington Post of material derived from a document entitled 'History of U.S. Decision-Making Process on Vietnam Policy.'

The case is now before us on the Government's petition for rehearing and for modification of our decision of June 23, 1971, predicated for the most part on the order entered earlier the same day by the United States Court of Appeals for the Second Circuit in No. 1067, September Term 1970, United States v. New York Times, 444 F.2d 544 remanding the case to the District Court for further in camera proceedings.

Having the greatest of respect for the Solicitor General, we have given his petition careful consideration but conclude that it should be denied. We state our reasons briefly.

1. The petition sets forth that neither the District Court nor this court has itself examined any of the documents, and continues: 'On a matter involving the possibility of grave and immediate danger to the security of the United States, there should be an opportunity for an appropriate adversary hearing in court.' We are of the view that there has been such an opportunity.

The complaint filed by the Government in the District Court prayed for a temporary restraining order enjoining the defendants from 'dissemination, disclosure or divulgence' of the material in question 'or any excerpt, portion or summary thereof.' The District Court denied the motion for a temporary restraining order. A panel of this court, one judge dissenting, reversed the District Court's order and directed that court to hold a hearing, in order to afford the Government an opportunity to make its case on the facts. The panel specified that the issue at that hearing was whether the threatened publication would so prejudice the defense interests of the United States or result in such irreparable injury to the United States that publication be restrained.

The hearing held by the District Court was conducted in part in open court, and in part in camera. In the open hearing a witness for the Government, Mr. Dennis J. Doolin, a senior official of the Defense Department, testified that he had been engaged in a continuing review of this History since November 1969, at the direction of the Secretary of Defense, to determine whether to grant the request of Senator Fulbright, Chairman of the senate foreign Relations Committee, for the study. This official further testified that the review 'was continuing as late as the week before the articles appeared in the New York Times.'

At the presentation to the District Court in camera the court had before it Top Secret affidavits and oral examination of Government witnesses, including Mr. Doolin. In this session, as noted in our opinion yesterday, the Government was directed to focus on any specific document that would prejudice the nation's defense interests.

The Government specified and discussed several documents. The District Court found that disclosure of those documents would not be harmful or that any harm resulting from disclosure would be insufficient to justify an injunction. Accordingly,

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the District Court refused to issue a preliminary injunction. We agreed with the conclusion of the...

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