HE CASE OF the United States v. the Progressive magazine came to a dismal end Monday. Nobody won. The government failed to protect what it says are fundamental secrets about the construction of the hydrogen bomb. The Progressive, and the press as a whole, failed to establish either that prior restraints on publication are unconstitutional or that the government has misused its secrecy stamp. All that has been established is that it is difficult, if not impossible, to keep information secret once it is out of the government's control.
This result came about because the Madison Press Connection published a letter containing the information that the Progressive had been barred by a federal judge from publishing for more than six months. Once that information was in the hands of the general public, as it obviously was after the Press Connection printed 8,000 copies, further efforts by the government to stop others from printing it were senseless. That's why the government asked that the order against the Progressive, and a similar order against a California paper, which also had the letter, be dissolved.
There is no way to judge now what damage has been done to national security by the publication of this information. The government's contention all along has been that it might be used to shorten the time in which nations that do not now have hydrogen weapons can produce them. Because much information about such weapons is, or has been, available from other public sources-- if you knew where to look for it-- tracing the impact of these disclosures on nuclear proliferation will be difficult.
The primary lesson to be learned from this affair is the flimsiness of prior restraint as a uay to prevent the disclosure of secret information. A judge cannot bar the publication of something unless the government knows in advance it is going to be published, and in this case the Department of Justice did not know the Press Connection had the letter. Any person intent upon publishing a secret, or communicating it to someone else, can similarly avoid a prior restraint (and the summary punishment for violating it) simply by keeping secret the fact he has it.
The only truly effective way the government can keep secrets is to keep them. Once they get out, they tend to be spread quickly-- just as this one was. The only real protections then available against publication of such secrets are the moral constraints felt by those into whose hands they havve fallen or the deterring effect of the criminal provisions of the Atomic Energy Act and other laws. In this case, neither was sufficient to prevent publication-- the former because too many people thought the government was carrying secrecy too far and the latter because some people, apparently including the editors of the Press Connection, believe the government lacks either the will or the ability to prosecute.
The risk those editors are taking is great-- prison terms of up to 20 years if their judgment of the letter's content is wrong and the government's right. But if the letter does contain the highly sensitive material the government says it does, it should not have been published. While a prosecution of those editors could jeopardize the current classification system and, perhaps, portions of the Atomic Energy Act itself, a decision by the Department of Justice not to prosecute could well turn that act's deterring provisions into a sham. In that event, the government learned from this affair about protecting its secrets and to rely even more on a dangerous system of ineffective prior restraints-- which it should in fact abandon.