In a rare secret filing, the American Civil Liberties Union asked the Supreme Court yesterday to order an expedited hearing on the suppression of a monthly magazine's article on the hydrogen bomb.
The request was submitted by the ACLU as counsel for Progressive magazine editors Erwin Knoll and Samuel H. Day Jr., and by Paul Friedman, attorney for writer Howard Morland, the author of the article.
They asked the justices to command the 7th U.S. Circuit Court of Appeals in Chicago to hear argument in about two weeks on their motion to lift the first preliminary injunction in American history to impose a prior restraint on publication of material protected by the First Amendment.
The injunction, requested by the government, was issued by U.S. District Court Judge Robert W. Warren in Milwaukee on March 26.
Last night, the Supreme Court heeded a plea by the ACLU and friedman for swift action by directing the government to respond by Monday noon. The court has said that a prior restraint of expression bears "a heavy presumption against its constitutional validity."
In addition, the justices were asked to approve the typed rather than printed form of the motions, because ACLU secretaries - but not printers - have security clearances.
The submission was secret because it contains material said by the government to be classified. Under a protective order issued by Judge Warren, defense attorneys can't submit anything publicly in court unitl it has been screened by the government.
The court accepted an in camera, or secret, brief from the government in 1971 in the Pentagon Papers case. In 1974 President Nixon's lawyers submitted a sealed petition for review in the White House tapes case, but the court, refusing to accept it in that form, opened it to public scrutiny, keeping secret only certain exhibits. Later, the court kept sealed certain exhibits in a commercial case involving trade secrets.
In the nearly three months since the government got the injunction from Wareen, it has admitted that the Atomic Energy Commission had declassified, in 1975, a document revealing "the essential secret of the H-bomb."
The government also stipulated that a competent scientist who had read the document would get no significant added information or benefit from the article and diagrams the Progressive seeks to print.
The AEC's declassification of a second document recently was portrayed by former H-bomb designer Theodore B.Taylor as "the most serious breach of security in the history of the nation's development of nuclear weapons."
Both documents were available to the public at a Department of Energy library in Los Alamos, N.M., until their erroneous declassification was discovered, respectively, in mid-1978 and several weeks ago.
These disclosures were cited to Judge Warren in motions, and in argument in his chambers, as reasons to lift the injunction.
But the Justice Department and DOE (successor to AEC) held fast to their position that material in the Progressive article, even if derived from public sources, contained confidential concepts under the Atomic Energy Act and, if printed, would aid putative builders of thermonuclear weapons.
A week ago yesterday, however, Warren denied motions to lift the injunction. He issued a brief memo concluding with a one-sentence order but gave his explanation in a seven-page secret opinion. Such opinions are rare.
The ACLU and Friedman, of the Washington office of White & Case, a Wall Street law firm, then asked the 7th Circuit to expedite a hearing on the injunction.
On Thursday, the appeals court denied the request. Circuit Judge Robert A. Sprecher said that oral argument will be heard on the date previously set, Sept. 10.