Morland's research in 2008|alt=Head of man with short white hair and white moustache.
The Progressive was a left-wing American monthly magazine of politics, culture and opinion with a circulation of around 40,000. In 1978, its managing editor, Sam Day Jr., a former editor of the
Bulletin of the Atomic Scientists, and its editor,
Erwin Knoll, commissioned freelance journalist
Howard Morland to write an article on the secrecy surrounding nuclear weapons production in America. In October 1978, Morland got Representative
Ronald V. Dellums to submit a series of questions about plutonium production to the
Department of Energy (DOE), the successor to the AEC. The DOE responded by classifying the questions. In September and October 1978, the
House Armed Services Committee held hearings on the proposed
Comprehensive Nuclear-Test-Ban Treaty. There was widespread public ignorance of issues surrounding nuclear weapons, and associated environmental concerns. Day and Morland hoped that by demystifying nuclear weapons, they would promote more critical public debate, and improve the prospects for nuclear disarmament. Morland claimed that "I am precisely the type of person the First Amendment was intended to protect: a political advocate whose ideas are unpopular with the general public and threatening to the government." Over a period of six months, Morland systematically pieced together a design for a hydrogen bomb. He visited a number of nuclear weapons facilities and interviewed government employees, with the permission of the DOE, usually identifying himself and his purpose. He did not have a security clearance, and had never had any access to classified nuclear weapons documents, although it is possible that some classified information or ideas were accidentally or deliberately leaked to him. His scientific background was minimal; he had taken five undergraduate courses in physics and chemistry as part of his
Bachelor of Arts degree in economics at
Emory University. Morland identified the features of the Teller–Ulam design as staging, with a fission primary and a fusion secondary inside opposite ends of a hollow container, and the use of radiation from the exploding primary to compress, or implode, the secondary. "The notion that X-rays could move solid objects with the force of thousands of tons of dynamite," noted Morland, "was beyond the grasp of the science fiction writers of the time." Day sent draft copies of Morland's article out to reviewers in late 1978 and early 1979, including Ron Siegel, a graduate student at
Massachusetts Institute of Technology. Siegel gave his draft copy to George Rathjens, a professor of political science there in February 1979. For many years, Rathjens had issued a challenge to his graduate students to produce a workable design for a hydrogen bomb, but no one had ever succeeded. Rathjens phoned
The Progressive and urged that the article not be published. When the editors dismissed his suggestion, he sent the draft to the DOE. "Apparently," wrote Morland, "I had earned a passing grade on the Rathjens challenge".
Legal arguments In March 1979, the editors sent a final draft to the DOE for comment. DOE officials, first in phone calls and then in person, attempted to dissuade
The Progressive from publishing the article on the grounds that it contained "secret
restricted data" as defined by the Atomic Energy Act.
The Progressive editors were not persuaded, and told the officials that they intended to proceed with publishing Morland's article. The DOE filed a
motion to suppress the article with the
United States District Court for the Western District of Wisconsin in
Madison on March 8, 1979. There was only one judge in the Western District of Wisconsin at the time, Judge
James Edward Doyle, but he recused himself as a friend of the magazine. The case was therefore brought before Judge
Robert W. Warren, a judge in the
Eastern District of Wisconsin, and heard by Warren in
Milwaukee. attempted to censor|alt=The cover has a black background with "The H-bomb secret" in red below the masthead and the subtitle "How we got it - why we're telling it" in yellow. The writing is accompanied by a Morland's diagram of an H-bomb. Lawyers for
The Progressive voluntarily underwent security reviews and were granted
Q clearances that allowed them to access restricted nuclear information. Morland and
The Progressive editors declined to obtain clearances, as they would have had to sign non-disclosure agreements that would have prevented them from publishing the article. This resulted in the lawyers being restricted in their communications with their clients. In seeking a
temporary restraining order, government lawyers argued that
The Progressive was about to break the law, causing
irreparable harm. The data in the article was
born classified, so it did not matter that it was an original work of the author. They noted that prior restraint had been upheld by the courts before in matters of national security, and argued that the
Pentagon Papers decision did not apply as the Atomic Energy Act specifically allowed for
injunctive relief. Moreover, the Pentagon Papers were historical, whereas the hydrogen bomb was a current military weapon. Finally, they pointed out that the government had obligations under the
Nuclear Non-Proliferation Treaty not to assist non-nuclear states in acquiring nuclear weapons. In granting the temporary restraining order on March 9, Warren said that he would have "to think long and hard before I gave the hydrogen bomb to
Idi Amin."
James R. Schlesinger, the
Secretary of Energy, telephoned leading newspapers and warned them not to support
The Progressive. This was probably unnecessary, for the media were supportive of the government's case.
Fred Graham, the
New York Times legal correspondent, predicted that the government would win the case. In an editorial on March 11, 1979,
The Washington Post wrote that
The Progressive case, "as a press-versus-government First Amendment contest, is
John Mitchell's dream case—the one the
Nixon Administration was never lucky enough to get: a real First Amendment loser." The newspaper called on
The Progressive to "forget about publishing it". In the
Pentagon Papers case, Professor
Alexander Bickel, an expert on the
United States Constitution, when asked hypothetically if prior restraint could ever be justified, had told the court that he would draw the line at the hydrogen bomb.
Daniel Ellsberg, who had leaked the Pentagon Papers, told Morland that he believed that nuclear weapon designs should be kept secret. Because of the horrific nature of thermonuclear weapons, and the expectation that
The Progressive would probably lose the case, mainstream media organizations feared that the result would be an erosion of freedom of the press. However, the court's role was to rule on whether publication was legal, not whether it was wise. In keeping with the usual practice of keeping a temporary restraining order in effect for as short a time as possible, Warren ordered that hearings be held on a
preliminary injunction one week after the March 9 temporary restraining order. On March 16, the Progressive's attorneys filed an affidavit from
Theodore Postol, an employee of the Department of Energy's
Argonne National Laboratory, stating that the information contained in the Morland article could be derived by any competent physicist from Teller's article on the hydrogen bomb in the
Encyclopedia Americana. At the request of both parties, the hearing was postponed to March 26 so they would have more time to file their briefs and affidavits. The parties were therefore back in court again on March 26 for a hearing on the government's request for a preliminary injunction. Warren decided not to hold an evidentiary hearing at which the opposing teams of experts could be cross examined. He also declined a suggestion by the
Federation of American Scientists in its
amicus curiae brief that a panel of experts be charged with examining the issue. The case relied on written affidavits and briefs, and the opposing counsels' oral arguments. Testimony was introduced entirely in the form of sworn affidavits, the most important of which were deemed classified and presented to the court
in camera. The government affiants included classification officers, weapon lab scientists, the Secretaries of Energy, State, and Defense, and Nobel physics laureate
Hans Bethe, whom Judge Warren cited as the star witness for the plaintiff. The defense side had no experts with direct knowledge of nuclear weapon design, until the unexpected appearance of
Ray Kidder, a nuclear weapon designer at the
Lawrence Livermore National Laboratory. One of Kidder's jobs in 1962 had been to evaluate designs of the 29 thermonuclear devices tested in
Operation Dominic. Kidder was able to credibly dispute government arguments in the battle of affidavits, leveling the technical playing field. Because of the importance of
radiation implosion in civilian fusion research, Kidder had been quietly waging a campaign to declassify it for some years prior to the Progressive case.
The Progressives legal team argued that the government had not established a case sufficient "to overcome the First Amendment's presumption against prior restraint". The article was based upon information in the
public domain, and was therefore neither a threat to national security nor covered by the Atomic Energy Act, which in any case did not authorize prior restraint, or was unconstitutional if it did. In this, counsel relied on the
United States v. Heine decision, in which Judge
Learned Hand ruled that information in the public domain could not be covered by the
Espionage Act of 1917. The government's lawyers argued, on the contrary, that there was sensitive information in the article, which was not in the public domain, and which, if published, would harm arms control efforts. In attempting to apply the
Near and
Pentagon Papers standards, the court was concerned about the prospect of publication causing the proliferation of nuclear weapons, and potentially a global
nuclear holocaust. The government did not go so far as to claim that publication might pose an immediate or inevitable danger, only that it "would substantially increase the risk that thermonuclear weapons would become available or available at an earlier date to those who do not now have them. If this should occur, it would undermine our nonproliferation policy, irreparably impair the
national security of the United States, and pose a threat to the peace and security of the world." However, the court still found that "a mistake in ruling against the United States could pave the way for thermonuclear annihilation for us all. In that event, our right to life is extinguished and the right to publish becomes moot", The appellants immediately appealed to the
Seventh Circuit Court of Appeals in Chicago, claiming that the two documents had been on the shelves for a considerable period of time. The government now advanced the argument that "technical data" was not protected by the First Amendment. The motions for an expedited review were denied because the magazine's lawyers had waived that right—something Morland and
The Progressive editors discovered only from the court. The preliminary injunction therefore remained in effect for six months.
Case dropped On April 25, 1979, a group of scientists who worked at the
Argonne National Laboratory wrote to Senator
John Glenn, the Chairman of the United States Senate Subcommittee on Energy, Nuclear Proliferation and Federal Services. They were concerned about information being leaked, in particular by the government's tacit acknowledgement that Morland's bomb design was substantially correct, something that could not otherwise have been deduced from unclassified information. These included the affidavits by the
United States Secretary of Defense Harold Brown and government expert witness Jack Rosengren. Copies of the letter were sent to major newspapers, but with a cover note explaining that it was for background information and not publication. After about four weeks, the Glenn subcommittee forwarded it to the DOE, which classified it. Unaware of this, Hugh DeWitt, a physicist at the Lawrence Livermore nuclear weapons laboratory, forwarded a copy to
Chuck Hansen. Hansen was a computer programmer from
Mountain View, California, who collected information about nuclear weapons as a hobby. He had run a competition to design an H-bomb, the winner of which would be the first person to have their design classified by the DOE. It now began to occur to him that his hobby might not be legal. On August 27, he wrote a letter to Senator
Charles H. Percy detailing how much information he had deduced from publicly available sources. This included his own design, one not as good as Morland's, which Hansen had not seen. Hansen further charged that government scientists—including Edward Teller,
Ted Taylor, and George Rathjens—had leaked sensitive information about thermonuclear weapons, for which no action had been taken. In this, Hansen was mistaken: Taylor had indeed been reprimanded, and Teller was not the source of the information that Hansen attributed to him. Hansen made copies of his letter available to several newspapers. When
The Daily Californian (the student-run
college newspaper of the
University of California at Berkeley), published excerpts from the Argonne letter on June 11, the DOE obtained a court order to prevent further publication. Undeterred,
The Daily Californian published the Argonne letter in its entirety on June 13. In September, the DOE declared the Hansen letter to be classified and obtained a temporary restraining order prohibiting
The Daily Californian from publishing it, but the Hansen letter was published by the
Madison Press Connection on September 16. The government then moved to dismiss their cases against both
The Progressive and
The Daily Californian as moot. ==Legacy==