In a case with heavy national defense and freedom of press overtones, a federal judge issued a temporary restraining order today to keep Progressive magazine from publishing an article the federal government charged exposes secrets of the hydrogen bomb.
In granting the 10-day order here, U.S. District Court Judge Robert Warren said the issues in the case "run as deep as the love of human liberty" and should be considered with utmost care.
But, he quickly added in a rambling discourse, "You can't speak freely when you're dead."
Earlier, the judge said, "I want to think a long, hard time before I'd give a hydrogen bomb to Idi Amin. It appears to me that is just what we're doing here."
A hearing on a Justice Department motion to permanently bar Progressive, a respected monthly with a circulation of 40,000, from publishing the controversial article was scheduled for 2 p.m. next Friday.
The government maintains the article, written by Howard Morland, a 36-year-old freelance writer from Arlington, Va., contains "secret restricted data" about the design of thermonuclear weapons. If published, the government claims, it would endanger national security and undercut arms control and disarmament policy.
Progressive, a 70-year-old magazine published in Madison, Wis., currently plans to print the article in its May edition which goes to press March 26.
"It is difficult to imagine anything that would do more damage to the United States than distributing this type of information," Thomas S. Martin, a deputy assistant attorney general, said in a 70-minute hearing today.
The article first came to the government's attention when the Progressive mailed a copy of a manuscript entitled, "How a Hydrogen Bomb Works," to the Department of Energy to check for technical accuracy Feb. 27. The article began, according to Martin, by saying, "What you are about to learn is a secret, a secret that the United States and four other governments have gone to extraordinary efforts to protect."
Lawyers for the Progressive argued the case was a clear freedom of press challenge. They repeatedly compared it to the celebrated 1971 Pentagon Papers case in which the Supreme Court prohibited the government from stopping publication of classified documents about the Vietnam war.
None of the information in the Morland article was obtained from classified government documents, according to Progressive magazine spokesmen. Instead, Morland gathreed it on government-guided visits to nuclear plants and from interviews, literature, and deduction. The author, they noted, had little scientific expertise and had taken only one math, two physics, and two chemistry courses in college.
"The information is out there," said Progressive attorney Gordon Sinykin. "It is in the public domain.It's available to any person who takes the trouble to find it."
He argued that the hydrogen bomb is not a secret the U.S. possesses alone. Four other countries -- the Soviet Union, France, Britain and China -- have the bomb, and a number of other nations are rapidly developing their own versions. "Thus it's not a secret forever," said Sinykin. "It's only a matter of a delay in time."
Martin, the government lawyer, retorted, "Time, in fact, is all we have in the process of trying to deal with the complex problems of nuclear proliferation, time to make agreements, time to negotiate."
The government argued that this case differs in several key aspects from the Pentagon Papers decision. First, there is a law -- the Atomic Energy Act -- that prohibits the "communication, transmittal or disclosure" of any information involving "restricted data" about nuclear weapons. Second, there is a more clear and immediate danger to the country in publishing the aritcle. Third, a number of news organizations had copies of the Pentagon Papers, while only the Progressive has the article at issue.
Sinykin argued that the Atomic Energy Act didn't apply to newspapers or magazines because it didn't specifically prohibit the publication of data. The press, he said, has a different position from others in dealing with national issues.
Although he appeared concerned about freedom of the press arguments, Judge Warren was unconvinced by claims that the case is parallel to the Pentagon Papers, or that the press enjoys any special freedoms. "I think that statute applies to everyone -- John Jones, The New York Times, and the Progressive," he said.
In his ruling, the judge said he could see no "real harm" to the Progressive magazine because the article was not scheduled for immediate publication.
In a press conference outside the courtroom Progressive editor Erwin Knoll said, "We're disappointed but not terribly surprised" by the ruling. "We will do everything within our legal means to resist this attempt at prior constraint which we regard as a serious violation of the First Amendment."
He said that the article was not a "How to make your own bomb at home" recipe but was about the "question of government security." It contains, he said, some technical information which would be valuable only to the most advanced industrial nations.
The Justice Department suit was filed after a fiurry of activity that started when the Progressive mailed a copy of the story to the Department of Energy on Feb. 27.
Terrence Adamson, the special assistant who handled the case for Attorney General Griffin B. Bell, said yesterday that the most hectic day was last Friday, March 2.
That had been described as the "day of reckoning" for publication by magazine editors and triggered a flurry of hastily prepared affidavits and legal papers by government officials, Adamson said.
Progressive magazine officials had agreed to meet Energy and Justice Department officials that day. "But we also wanted to be in a position to file suit in case the negotiations didn't work out," the Bell aide said.
The government was proposing that its experts work with the magazine editors to delete the "secret restricted data" in the article so it could be published in a form U.S. nuclear experts in a form U.S. nuclear experts could accept.
The meeting that afternoon in Madison was conducted in a "high-level, honorable" manner, Adamson said. But the magazine officials asked to be able to think about their decision over the weekend, agreeing they would not publish in the meantime.
Meanwhile that day, Energy Secretary James Schlesinger wrote to Bell formally requesting the suit be filed, as required under the injunction provisions of the Atomic Energy Act. Bell also wrote an "information" memo to President Carter that day, explaining why he had authorized the suit.
Wednesday at 4:30 p.m., Progressive attorney Gordon Sinykin called Energy Department general counsel Lynn R. Coleman to say the magazine intended to publish.
The next day attorneys from the Justice Department's civil division were in Madison, arranging for a court hearing and for the defendants to be served with the papers. The suit itself was filed about 9:30 p.m. Madison time.