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MR. JUSTICE STEWART, with whom MR. JUSTICE WHITE joins, concurring.
MR. JUSTICE BRENNAN, concurring.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK joins, concurring.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring.
MR. JUSTICE BLACKMUN, dissenting.
MR. JUSTICE HARLAN, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, dissenting.
MR. CHIEF JUSTICE BURGER, dissenting.
MR. JUSTICE MARSHALL, concurring.
MR. JUSTICE WHITE,
with whom MR. JUSTICE STEWART joins, concurring.
The Government contends that the only issue
in these cases is whether in a suit by the United States, "the
First Amendment bars a court from prohibiting a newspaper from
publishing material whose disclosure would pose a 'grave and immediate
danger to the security of the United States.'" Brief for
the United States 7. With all due respect, I believe the ultimate
issue in these cases is even more basic than the one posed by
the Solicitor General. The issue is whether this Court or the
Congress has the power to make law.
In these cases there is no problem concerning
the President's power to classify information as "secret"
or "top secret." Congress has specifically recognized
Presidential authority, which has been formally exercised in Exec.
Order 10501 (1953), to classify documents and information. See,
e. g., 18 U. S. C. § 798; 50 U. S. C. § 783. 1
Nor is there any issue here regarding the President's power as
Chief Executive and Commander in Chief to protect national security
by disciplining employees who disclose information and by taking
precautions to prevent leaks.
The problem here is whether in these particular
cases the Executive Branch has authority to invoke the equity
jurisdiction of the courts to protect what it believes to be the
national interest. See In re Debs, 158 U.S. 564, 584 (1895). The
Government argues that in addition to the inherent power of any
government to protect itself, the President's power to conduct
foreign affairs and his position as Commander in Chief give him
authority to impose censorship on the press to protect his ability
to deal effectively with foreign nations and to conduct the military
affairs of the country. Of course, it is beyond cavil that the
President has broad powers by virtue of his primary responsibility
for the conduct of our foreign affairs and his position as Commander
in Chief. Chicago & Southern Air Lines v. Waterman S. S. Corp.,
333 U.S. 103 (1948); Hirabayashi v. United States, 320 U.S. 81,
93 (1943); United States v. Curtiss-Wright Corp., 299 U.S. 304
(1936). 2 And in some situations
it may be that under whatever inherent powers the Government may
have, as well as the implicit authority derived from the President's
mandate to conduct foreign affairs and to act as Commander in
Chief, there is a basis for the invocation of the equity jurisdiction
of this Court as an aid to prevent the publication of material
damaging to "national security," however that term may
be defined.
It would, however, be utterly inconsistent
with the concept of separation of powers for this Court to use
its power of contempt to prevent behavior that Congress has specifically
declined to prohibit. There would be a similar damage to the basic
concept of these co-equal branches of Government if when the Executive
Branch has adequate authority granted by Congress to protect "national
security" it can choose instead to invoke the contempt power
of a court to enjoin the threatened conduct. The Constitution
provides that Congress shall make laws, the President execute
laws, and courts interpret laws. Youngstown Sheet & Tube Co.
v. Sawyer, 343 U.S. 579 (1952). It did not provide for government
by injunction in which the courts and the Executive Branch can
"make law" without regard to the action of Congress.
It may be more convenient for the Executive Branch if it need
only convince a judge to prohibit conduct rather than ask the
Congress to pass a law, and it may be more convenient to enforce
a contempt order than to seek a criminal conviction in a jury
trial. Moreover, it may be considered politically wise to get
a court to share the responsibility for arresting those who the
Executive Branch has probable cause to believe are violating the
law. But convenience and political considerations of the moment
do not justify a basic departure from the principles of our system
of government.
In these cases we are not faced with a situation
where Congress has failed to provide the Executive with broad
power to protect the Nation from disclosure of damaging state
secrets. Congress has on several occasions given extensive consideration
to the problem of protecting the military and strategic secrets
of the United States. This consideration has resulted in the enactment
of statutes making it a crime to receive, disclose, communicate,
withhold, and publish certain documents, photographs, instruments,
appliances, and information. The bulk of these statutes is found
in chapter 37 of U. S. C., Title 18, entitled Espionage and Censorship.
3 In that chapter, Congress
has provided penalties ranging from a $ 10,000 fine to death for
violating the various statutes.
Thus it would seem that in order for this Court
to issue an injunction it would require a showing that such an
injunction would enhance the already existing power of the Government
to act. See Bennett v. Laman, 277 N. Y. 368, 14 N. E. 2d 439 (1938).
It is a traditional axiom of equity that a court of equity will
not do a useless thing just as it is a traditional axiom that
equity will not enjoin the commission of a crime. See Z. Chafee
& E. Re, Equity 935-954 (5th ed. 1967); 1 H. Joyce, Injunctions
§§ 58-60a (1909). Here there has been no attempt to
make such a showing. The Solicitor General does not even mention
in his brief whether the Government considers that there is probable
cause to believe a crime has been committed or whether there is
a conspiracy to commit future crimes.
If the Government had attempted to show that
there was no effective remedy under traditional criminal law,
it would have had to show that there is no arguably applicable
statute. Of course, at this stage this Court could not and cannot
determine whether there has been a violation of a particular statute
or decide the constitutionality of any statute. Whether a good-faith
prosecution could have been instituted under any statute could,
however, be determined.
At least one of the many statutes in this area
seems relevant to these cases. Congress has provided in 18 U.
S. C. § 793 (e) that whoever "having unauthorized possession
of, access to, or control over any document, writing, code book,
signal book . . . or note relating to the national defense, or
information relating to the national defense which information
the possessor has reason to believe could be used to the injury
of the United States or to the advantage of any foreign nation,
willfully communicates, delivers, transmits . . . the same to
any person not entitled to receive it, or willfully retains the
same and fails to deliver it to the officer or employee of the
United States entitled to receive it . . . shall be fined not
more than $ 10,000 or imprisoned not more than ten years, or both."
Congress has also made it a crime to conspire to commit any of
the offenses listed in 18 U. S. C. § 793 (e).
It is true that Judge Gurfein found that Congress
had not made it a crime to publish the items and material specified
in § 793 (e). He found that the words "communicates,
delivers, transmits . . ." did not refer to publication of
newspaper stories. And that view has some support in the legislative
history and conforms with the past practice of using the statute
only to prosecute those charged with ordinary espionage. But see
103 Cong. Rec. 10449 (remarks of Sen. Humphrey). Judge Gurfein's
view of the statute is not, however, the only plausible construction
that could be given. See my Brother WHITE'S concurring opinion.
Even if it is determined that the Government
could not in good faith bring criminal prosecutions against the
New York Times and the Washington Post, it is clear that Congress
has specifically rejected passing legislation that would have
clearly given the President the power he seeks here and made the
current activity of the newspapers unlawful. When Congress specifically
declines to make conduct unlawful it is not for this Court to
redecide those issues -- to overrule Congress. See Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
On at least two occasions Congress has refused
to enact legislation that would have made the conduct engaged
in here unlawful and given the President the power that he seeks
in this case. In 1917 during the debate over the original Espionage
Act, still the basic provisions of § 793, Congress rejected
a proposal to give the President in time of war or threat of war
authority to directly prohibit by proclamation the publication
of information relating to national defense that might be useful
to the enemy. The proposal provided that:
"During any national emergency resulting
from a war to which the United States is a party, or from threat
of such a war, the President may, by proclamation, declare the
existence of such emergency and, by proclamation, prohibit the
publishing or communicating of, or the attempting to publish or
communicate any information relating to the national defense which,
in his judgment, is of such character that it is or might be useful
to the enemy. Whoever violates any such prohibition shall be punished
by a fine of not more than $ 10,000 or by imprisonment for not
more than 10 years, or both: Provided, That nothing in this section
shall be construed to limit or restrict any discussion, comment,
or criticism of the acts or policies of the Government or its
representatives or the publication of the same." 55 Cong.
Rec. 1763.
Congress rejected this proposal after war against
Germany had been declared even though many believed that there
was a grave national emergency and that the threat of security
leaks and espionage was serious. The Executive Branch has not
gone to Congress and requested that the decision to provide such
power be reconsidered. Instead, the Executive Branch comes to
this Court and asks that it be granted the power Congress refused
to give.
In 1957 the United States Commission on Government
Security found that "airplane journals, scientific periodicals,
and even the daily newspaper have featured articles containing
information and other data which should have been deleted in whole
or in part for security reasons." In response to this problem
the Commission proposed that "Congress enact legislation
making it a crime for any person willfully to disclose without
proper authorization, for any purpose whatever, information classified
'secret' or 'top secret,' knowing, or having reasonable grounds
to believe, such information to have been so classified."
Report of Commission on Government Security 619-620 (1957). After
substantial floor discussion on the proposal, it was rejected.
See 103 Cong. Rec. 10447-10450. If the proposal that Sen. Cotton
championed on the floor had been enacted, the publication of the
documents involved here would certainly have been a crime. Congress
refused, however, to make it a crime. The Government is here asking
this Court to remake that decision. This Court has no such power.
Either the Government has the power under statutory
grant to use traditional criminal law to protect the country or,
if there is no basis for arguing that Congress has made the activity
a crime, it is plain that Congress has specifically refused to
grant the authority the Government seeks from this Court. In either
case this Court does not have authority to grant the requested
relief. It is not for this Court to fling itself into every breach
perceived by some Government official nor is it for this Court
to take on itself the burden of enacting law, especially a law
that Congress has refused to pass.
I believe that the judgment of the United States
Court of Appeals for the District of Columbia Circuit should be
affirmed and the judgment of the United States Court of Appeals
for the Second Circuit should be reversed insofar as it remands
the case for further hearings.
---- Begin EndNotes ----
1 See n. 3, infra.
2 But see Kent v. Dulles, 357 U.S. 116 (1958); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
3 There
are several other statutory provisions prohibiting and punishing
the dissemination of information, the disclosure of which Congress
thought sufficiently imperiled national security to warrant that
result. These include 42 U. S. C. §§ 2161 through 2166
relating to the authority of the Atomic Energy Commission to classify
and declassify "Restricted Data" ["Restricted Data"
is a term of art employed uniquely by the Atomic Energy Act].
Specifically, 42 U. S. C. § 2162 authorizes the Atomic Energy
Commission to classify certain information. Title 42 U. S. C.
§ 2274, subsection (a), provides penalties for a person who
"communicates, transmits, or discloses [restricted data]
. . . with intent to injure the United States or with intent to
secure an advantage to any foreign nation . . . ." Subsection
(b) of § 2274 provides lesser penalties for one who "communicates,
transmits, or discloses" such information "with reason
to believe such data will be utilized to injure the United States
or to secure an advantage to any foreign nation . . . ."
Other sections of Title 42 of the United States Code dealing with
atomic energy prohibit and punish acquisition, removal, concealment,
tampering with, alteration, mutilation, or destruction of documents
incorporating "Restricted Data" and provide penalties
for employees and former employees of the Atomic Energy Commission,
the armed services, contractors and licensees of the Atomic Energy
Commission. Title 42 U. S. C. §§ 2276, 2277. Title 50
U. S. C. App. § 781, 56 Stat. 390, prohibits the making of
any sketch or other representation of military installations or
any military equipment located on any military installation, as
specified; and indeed Congress in the National Defense Act of
1940, 54 Stat. 676, as amended, 56 Stat. 179, conferred jurisdiction
on federal district courts over civil actions "to enjoin
any violation" thereof. 50 U. S. C. App. § 1152 (6).
Title 50 U. S. C. § 783 (b) makes it unlawful for any officers
or employees of the United States or any corporation which is
owned by the United States to communicate material which has been
"classified" by the President to any person who that
governmental employee knows or has reason to believe is an agent
or representative of any foreign government or any Communist organization.
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