A government attorney, urging continued suppression of a Progressive magazine article on the hydrogen bomb, was asked this question today: Would the Justice Department seek to restrain publication of Russian H-bomb secrets somehow obtained by an American citizen in the Soviet Union?
Yes, Deputy Assistant Attorney General Thomas S. Martin told U.S. Circuit Judge Wilbur F. Pell, Jr.
The reason given by Martin was that Congress in passing the Atomic Energy Act of 1954, wasn't concerned with the source of information that could contribute to the development of nuclear weapons by non-nuclear powers.
Rather, he said, Congress was seeking to prevent disclosures that could lead to proliferation of such weapons.
After considering the response for a few minutes, Pell said: "In candor, I'd be more impressed if you were trying to keep secret our secrets, but you're trying to keep secret the whole world's secrets."
By contrast, the Progressive article is said by freelance writer Howard Moreland, the magazine itself, and the editors, to have been derived entirely from information in the public domain.
The government counters that even if it's true, the article assembles the information in a "unique" way that violates the 1954 law.
Pell's exchange with Martin was a highlight of nearly two hours of oral argument on a effort to lift the preliminary injunction that restrains the Progressive from publishing Morland's "The H-bomb Secret -- How We Got It, Why We're Telling It."
The case was taken under advisement by three members of the 7th U.S. Circuit Court of Appeals: Acting Chief Judge Walter J. Cummings and Judges William J. Bauer and Pell.
The panel indicated neither how nor when it will rule. Whatever the ruling, the case appears to be bound for the Supreme Court.
For the most part, the argument dealt with familiar key issues.
One such issue was whether the First Amendment guaranteeing freedom of the press was violated by the first injunction in history to restain what the defendants -- but not the government -- call "political speech." A related issue is whether Congress, in the 1954 law, intended to allow a prior restraint of publication.
But the hearing did produce one surprising development. That came when Cummings inquired about two Milwaukee Sentinel newspaper storeis on the H-bomb that defense lawyers -- on pain of possible criminal penalties -- are forbidden to discuss.
The stories were based on H-bomb materials found in the public libraries of Milwaukee and Waukegan, Ill., by reporter Joe Manning. His scientific education was a college-level botany course, and he spent only a week in the libraries. His purpose, the Sentinel said, was "to obtain a better understanding of the issues in the case."
The Sentinel published the story April 30 and May 1 under these headlines, respectively: "H-Bomb's Secrets Are Few" and "H-Bomb Material Readily Accessible."
(The points made by the headlines repeatedly have been made, more forcefully, by the defendants. H-bomb secrecy, they say, is a myth, or, as editor Erwin Knoll, put it, "The secret is that there is no secret." But, he argues, government-imposed secrecy prevents needed public discussion of vital nuclear issues.)
In reply to a question put by Cummings, Earl Munson, counsel for the magazine, said that he was prohibited from discussing the Sentinel story.
The prohibition is rooted in the order issued, at the government's request, by U.S. District Court Judge Robert W. Warren in Milwaukee March 26.
The injunction and a protective order require counsel in the case -- all with security clearances -- to submit their written briefs to the Justice Department so that it may delete sensitive matter before the briefs go into the public record. Attorneys also are forbidden to talk about the deleted matter.
The Sentinel stories were discussed in at least one brief before it was censored, if context and deletions are a reliable indicator.
The brief was filed jointly by the American Civil Liberties Union, counsel for the magazine's editors and Paul L. Friedman, counsel for writer Morland.
Reporters asked the ACLU'S Bruce J. Ennis whether he was barred by Warren's order from discussing the very stories that Cummings had mentioned. Ennis said he couldn't comment, but noted that the order applied only to counsel.