The federal government said yesterday it will review its secret court filings in the fight to stop publication of a Progressive magazine story on the workings of the hydrogen bomb as a step to "maximum public disclosure . . . consistent with national security."
The Justice Department abandoned its effort to block the article on Sept. 17 after the basic concepts of the H-bomb were disclosed in another story. But lawyers for the Progressive, its editors, and Howard Morland, author of the story, argued that the 7th U.S. Circuit Court of Appeals in Chicago should take the opportunity to rule that it is unconstitutional to continue the protective order on most of the secret filings in the case.
In a brief filed yesterday, the government replied that it would review the suppressed documents in the Progressive case. Within six weeks, government attorneys said, the Department of Energy could decide which material could be declassified in light of the recent publication of an H-bomb article in the Madison Press Connection.
The government acknowledged, for instance, that some technical data in affidavits from its weapons experts "goes beyond" that contained in either the Morland or the Madison paper's story by identifying errors in Morland's story.
"Abandonment of the injunctive action does not require that this additional learning on H-bomb design, generated by the government, should be released," the Justice brief said.
In their brief last week, lawyers for Morland and the Progressive editors continuing and permanent restraing . . . .
In asking that the Atomic Energy Act, which was the basis for the government's case, be declared unconstitutional, the Progressive lawyers claimed only a decision by the court would prevent a chilling effect on the defendants' freedom of speech.
The government countered yesterday that "it is hard to understand how the defendants can complain of being 'chilled' by the prohibition against disclosing information they never saw."
The Washington Post reported recently that Department of Energy experts suspect their own scientists leaked classified information to Morland and Charles Hansen, author of the story published by the Madison paper. While Morland and the Progressive editors didn't have access to the secret papers filed in the case, some government scientists acting as expert witnesses for the defense did.
The Justice Department is checking whether the suspected leaks are criminal violations of the protective order or the Atomic Energy Act.