Attorney General Griffin B. Bell won a round yesterday in his fight to prevent disclosure of secret FBI informant files.
A federal appeals court judge in New York temporarily suspended a lower-court order holding Bell in contempt of court to allow time for an appeals court panel to review the unprecedented action.
Judge Murra I Gurfein of the 2nd U.S. Circuit Court of Appeals said the "exceptional" nature of the case led him to conclude Bell was entitled to an appeal.
It is now likely the heated legal battle between the attorney general and the Socialist Workers Party, backed by U.S District Court Judge Thomas P. Griesa, will not be settled until this fall, when the 2nd Circuit starts its next session.
The SWP and its youth affiliate, the Young Socialist Alliance, have been seeking to review raw informant files for evidence in their $40 million civil suit against the government for allegedly illegal FBI spying.
Bell has argued that turning over the 18 files - an action ordered by ernment promises of confidentiality to informants.
Earlier efforts to appeal that order were rejected on technical grounds because it was not the final judgment in the case. A 2nd Circuit panel, in fact, expressed sympathy with Bell's position last year, but said it simply could not review his intermediate "discovery" order. The Supreme Court also declined review.
Griesa escalated the seriousness of the confrontation between the executive and judicial branches in the past week by ordering Bell held in contempt of court for refusing to obey his order.
Griesa in May 1977 - would break [WORD ILLEGIBLE]
Bell said he was willing to be held in contempt if that was necessary to get appellate review of the informant issue.
Gurfein said yesterday that he was issuing an oral opinion because of the "legitimate public interest" in the case. "Everybody will be better off if there is appellate review," he said.
If the SWP attorneys win, the judge said, they "will have a solid base on which to proceed . . . If they lose, we will have prevented an untimely spilling of the beans in a situation that does not require it and which is irreparable in its terms."
Gurfein said he thought it important that appellate courts "straighten out this entire question of informer's privilege." Giving it up too easily, he said, "may in certain cases result in assassination and death."
The judge likened the current confrontation to the one in which President Nixon sought and was granted immediate review of a lower-court order that he turn over the Watergate tape recordings so he wouldn't have to be held in contempt to trigger an appeal.
Gurfein said that in "normal" court proceedings the government "is entitled to no special privileges beyond that of the ordinary citizen, and that remains true." But he added that the current case involved an "institutional confrontation between the highest echelons of the executive branch and the judiciary."
The judge took pains to say he was not prejudging the merits of the case and that he recognized the importance of the SWP position.
"I decide simply that there is merit in Mr. Fiske's argument that the government has the right to appeal." Robert B. Fiske Jr. is the U.S. attorney in New York who argued the case for the government.