At least one of the many statutes in this area seems relevant to these cases. Congress has provided in 18 U. 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 Cong. Judge Gurfein's view of the Statute is not, however, the only plausible construction that could be given. 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. 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.
The proposal provided that:. 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 the United States Commission on Government Security found that ' a irplane 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.
After substantial floor discussion on the proposal, it was rejected. See Cong. 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. So clear are the constitutional limitations on prior restraint against expression, that from the time of Near v.
There is, therefore, little variation among the members of the Court in terms of resistance to prior restraints against publication. Adherence to this basic constitutional principle, however, does not make these cases simple ones. In these cases, the imperative of a free and unfettered press comes into collision with another imperative, the effective functioning of a complex modern government and specifically the effective exercise of certain constitutional powers of the Executive.
Only those who view the First Amendment as an absolute in all circumstances—a view I respect, but reject—can find such cases as these to be simple or easy. These cases are not simple for another and more immediate reason. We do not know the facts of the cases. No District Judge knew all the facts. No Court of Appeals Judge knew all the facts. No member of this Court knows all the facts.
Why are we in this posture, in which only those judges to whom the First Amendment is absolute and permits of no restraint in any circumstances or for any reason, are really in a position to act?
I suggest we are in this posture because these cases have been conducted in unseemly haste. Justice HARLAN covers the chronology of events demonstrating the hectic pressures under which these cases have been processed and I need not restate them. The prompt settling of these cases reflects our universal abhorrence of prior restraint.
But prompt judicial action does not mean unjudicial haste. Here, moreover, the frenetic haste is due in large part to the manner in which the Times proceeded from the date it obtained the purloined documents.
It seems reasonably clear now that the haste precluded reasonable and deliberate judicial treatment of these cases and was not warranted. The precipitate action of this Court aborting trials not yet completed is not the kind of judicial conduct that ought to attend the disposition of a great issue. The newspapers make a derivative claim under the First Amendment ; they denominate this right as the public 'right to know'; by implication, the Times asserts a sole trusteenship of that right by virtue of its journalistic 'scoop.
Of course, the First Amendment right itself is not an absolute, as Justice Holmes so long ago pointed out in his aphorism concerning the right to shout 'fire' in a crowded theater if there was no fire. There are other exceptions, some of which Chief Justice Hughes mentioned by way of example in Near v. There are no doubt other exceptions no one has had occasion to describe or discuss. Conceivably such exceptions may be lurking in these cases and would have been flushed had they been properly considered in the trial courts, free from unwarranted deadlines and frenetic pressures.
An issue of this importance should be tried and heard in a judicial atmosphere conducive to thoughtful, reflective deliberation, especially when haste, in terms of hours, is unwarranted in light of the long period the Times, by its own choice, deferred publication. It is not disputed that the Times has had unauthorized possession of the documents for three to four months, during which it has had its expert analysts studying them, presumably digesting them and preparing the material for publication.
During all of this time, the Times, presumably in its capacity as trustee of the public's 'right to know,' has held up publication for purposes it considered proper and thus public knowledge was delayed. No doubt this was for a good reason; the analysis of 7, pages of complex material drawn from a vastly greater volume of material would inevitably take time and the writing of good news stories takes time. But why should the United States Government, from whom this information was illegally acquired by someone, along with all the counsel, trial judges, and appellate judges be placed under needless pressure?
After these months of deferral, the alleged 'right to know' has somehow and suddenly become a right that must be vindicated instanter. Would it have been unreasonable, since the newspaper could anticipate the Government's objections to release of secret material, to give the Government an opportunity to review the entire collection and determine whether agreement could be reached on publication? Stolen or not, if security was not in fact jeopardized, much of the material could not doubt have been declassified, since it spans a period ending in With such an approach—one that great newspapers have in the past practiced and stated editorially to be the duty of an honorable press—the newspapers and Government might well have narrowed the area of disagreement as to what was and was not publishable, leaving the remainder to be resolved in orderly litigation, if necessary.
To me it is hardly believable that a newspaper long regarded as a great institution in American life would fail to perform one of the basic and simple duties of every citizen with respect to the discovery or possession of stolen property or secret government documents. That duty, I had thought perhaps naively—was to report forthwith, to responsible public officers.
This duty rests on taxi drivers, Justices, and the New York Times. The course followed by the Times, whether so calculated or not, removed any possibility of orderly litigation of the issues. If the action of the judges up to now has been correct, that result is sheer happenstance. Our grant of the writ of certiorari before final judgment in the Times case aborted the trial in the District Court before it had made a complete record pursuant to the mandate of the Court of Appeals for the Second Circuit.
The consequence of all this melancholy series of events is that we literally do not know what we are acting on. As I see it, we have been forced to deal with litigation concerning rights of great magnitude without an adequate record, and surely without time for adequate treatment either in the prior proceedings or in this Court.
It is interesting to note that counsel, on both sides, in oral argument before this Court, were frequently unable to respond to questions on factual points. Not surprisingly they pointed out that they had been working literally 'around the clock' and simply were unable to review the documents that give rise to these cases and were not familiar with them.
This Court is in no better posture. I agree generally with Mr. I would affirm the Court of Appeals for the Second Circuit and allow the District Court to complete the trial aborted by our grant of certiorari, meanwhile preserving the status quo in the post case. I would direct that the District Court on remand give priority to the Times case to the exclusion of all other business of that court but I would not set arbitrary deadlines.
I should add that I am in general agreement with much of what Mr. Justice WHITE has expressed with respect to penal sanctions concerning communication or retention of documents or information relating to the national defense. We all crave speedier judicial processes but when judges are pressured as in these cases the result is a parody of the judicial function.
These cases forcefully call to mind the wise admonition of Mr. Justice Holmes, dissenting in Northern Securities Co. For great cases are called great, not by reason of their real importance in shaping the law of the futture, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.
These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend. With all respect, I consider that the Court has been almost irresponsibly feverish in dealing with these cases. The New York Times' petition for certiorari, its motion for accelerated consideration thereof, and its application for interim relief were filed in this Court on June 24 at about 11 a.
The application of the United States for interim relief in the Post case was also filed here on June 24 at about p. This Court's order setting a hearing before us on June 26 at 11 a. The record in the Post case was filed with the Clerk shortly before 1 p. The briefs of the parties were received less than two hours before argument on June This frenzied train of events took place in the name of the presumption against prior restraints created by the First Amendment. Due regard for the extraordinarily important and difficult questions involved in these litigations should have led the Court to shun such a precipitate timetable.
In order to decide the merits of these cases properly, some or all of the following questions should have been faced:.
Whether the Attorney General is authorized to bring these suits in the name of the United States. Compare In re Debs, U. This question involves as well the construction and validity of a singularly opaque statute—the Espionage Act, 18 U. Whether the First Amendment permits the federal courts to enjoin publication of stories which would present a serious threat to national security. See Near v. Minnesota, ex rel. Whether the threat to publish highly secret documents is of itself a sufficient implication of national security to justify an injunction on the theory that regardless of the contents of the documents harm enough results simply from the demonstration of such a breach of secrecy.
Whether the unauthorized disclosure of any of these particular documents would seriously impair the national security. What weight should be given to the opinion of high officers in the Executive Branch of the Government with respect to questions 3 and 4.
Whether the newspapers are entitled to retain and use the documents notwithstanding the seemingly uncontested facts that the documents, or the originals of which they are duplicates, were purloined from the Government's possession and that the newspapers received them with knowledge that they had been feloniously acquired.
Liberty Lobby, Inc. Pearson, U. Whether the threatened harm to the national security or the Government's possessory interest in the documents justifies the issuance of an injunction against publication in light of—. The strong First Amendment policy against prior restraints on publication; b. The doctrine against enjoining conduct in violation of criminal statutes; and. The extent to which the materials at issue have apparently already been otherwise disseminated.
These are difficult questions of fact, of law, and of judgment; the potential consequences of erroneous decision are enormous. It is a reflection on the stability of the judicial process that these great issues—as important as any that have arisen during my time on the Court—should have been decided under the pressures engendered by th torrent of publicity that has attended these litigations from their inception.
Forced as I am to reach the merits of these cases, I dissent from the opinion and judgments of the Court. Within the severe limitations imposed by the time constraints under which I have been required to operate, I can only state my reasons in telescoped form, even though in different circumstances I would have felt constrained to deal with the cases in the fuller sweep indicated above. It is a sufficient basis for affirming the Court of Appeals for the Second Circuit in the Times litigation to observe that its order must rest on the conclusion that because of the time elements the Government had not been given an adequate opportunity to present its case to the District Court.
At the least this conclusion was not an abuse of discretion. In the Post litigation the Government had more time to prepare; this was apparently the basis for the refusal of the Court of Appeals for the District of Columbia Circuit on rehearing to conform its judgment to that of the Second Circuit.
But I think there is another and more fundamental reason why this judgment cannot stand—a reason which also furnishes an additional ground for not reinstating the judgment of the District Court in the Times litigation, set aside by the Court of Appeals.
It is plain to me that the scope of the judicial function in passing upon the activities of the Executive Branch of the Government in the field of foreign affairs is very narrowly restricted. This view is, I think, dictated by the concept of separation of powers upon which our constitutional system rests.
In a speech on the floor of the House of Representatives, Chief Justice John Marshall, then a member of that body, stated:. From that time, shortly after the founding of the Nation, to this, there has been no substantial challenge to this description of the scope of executive power. See United States v. Curtiss-Wright Export Corp. From this constitutional primacy in the field of foreign affairs, it seems to me that certain conclusions necessarily follow.
Some of these were stated concisely by President Washington, declining the request of the House of Representatives for the papers leading up to the negotiation of the Jay Treaty:. Richardson, Messages and Papers of the Presidents — The power to evaluate the 'pernicious influence' of premature disclosure is not, however, lodged in the Executive alone. I agree that, in performance of its duty to protect the values of the First Amendment against political pressures, the judiciary must review the initial Executive determination to the point of satisfying itself that the subject matter of the dispute does lie within the proper compass of the President's foreign relations power.
Constitutional considerations forbid 'a complete abandonment of judicial control. United States v. Reynolds, U. Moreover the judiciary may properly insist that the determination that disclosure of the subject matter would irreparably impair the national security be made by the head of the Executive Department concerned—here the Secretary of State or the Secretary of Defense after actual personal consideration by that officer.
This safeguard is required in the analogous area of executive claims of privilege for secrets of state. See id. Cookie banner We use cookies and other tracking technologies to improve your browsing experience on our site, show personalized content and targeted ads, analyze site traffic, and understand where our audiences come from.
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The Latest. For example, the state of Texas spent a lot of money on school programs to promote sexual abstinence, on the basis of research that showed a correlation between adolescent sexuality and subsequent antisocial behavior. Harden used a twin study to demonstrate that a twin who began having sex early showed no greater likelihood of engaging in risky behavior than her twin who had abstained.
In other words, both behaviors might be the expression of some underlying predisposition, but no causal arrow could be drawn. A gene was purportedly identified for aggression, and one for depression, and one for homosexuality.
It became clear that complex traits were governed by multiple genes, and that individual genes could pertain to a variety of attributes. Around the time that Harden was finishing her dissertation, however, researchers began to wonder if it might be possible to identify hundreds or even thousands of places in the genome where differences in our DNA sequences could be correlated with a trait or an outcome.
Turkheimer was characteristically unimpressed with the initial results, which were weak. At the annual conference of the Behavior Genetics Association in , he delivered a withering keynote address: trying to understand human behavior with a GWAS was like putting a CD under a microscope to figure out if a song was good. Harden, too, was sure that they would not learn anything from these contrived statistical exercises.
In the last five years, GWAS results have rapidly evolved. The largest GWAS for educational attainment to date found almost thirteen hundred sites on the genome that are correlated with success in school. Though each might have an infinitesimally small statistical relationship with the outcome, together they can be summed to produce a score that has predictive validity: those in the group with the highest scores were approximately five times more likely to graduate from college than those with the lowest scores—about as accurate a predictor as traditional social-science variables like parental income.
Harden and her collaborators currently conduct their own GWAS efforts; most recently, they have investigated behaviors including adolescent aggression and risktaking, which are strongly predictive of life span and labor-market outcomes.
She knows that she may never convince Turkheimer, who continues to argue that the light these studies generate is too faint to dispel his gloom.
Harden was joined in Bozeman by her younger brother, Micah, who was visiting from Memphis. We sat together on the covered patio of the airy house Harden had rented with her boyfriend, an architectural designer named Travis Avery.
It was the longest spell she had ever spent away from her children, who were on a road trip with Tucker-Drob. The couple got divorced in Micah had come with his wife, Steffi, and their ten-month-old, Hadley, a bright, sly child with an endearingly defiant stare.
As the adults sat around talking, Hadley plotted to make off with the ramekins of almonds and glasses of wine. Micah and Steffi had met playing soccer, and Harden teased them that Hadley might forsake the pitch for musical theatre.
Polygenic scores remain poor predictors of individual outcomes—there are plenty of people on the low end of the spectrum for educational attainment who go on to graduate studies, and plenty of people on the high end who never secure a high-school diploma.
GWAS results can accidentally reveal as much about culture or geography as they do about genes. A study of chopstick use in San Francisco would find that proficiency is genetically correlated with East Asian ancestry, which is a far cry from the discovery of an inborn dexterity with a particular utensil. One way to sidestep this pitfall is by comparing GWAS results within families, where they have been shown to reliably account for differences in life outcomes among siblings.
Harden thinks that the conversation about behavior genetics will continue to go in circles as long as we preserve the facile distinction between immutable genetic causes and malleable environmental ones. We would be better off if we accepted that everything is woven of long causal chains from genes through culture to personhood, and that the more we understand about them the more effective our interventions might be. The first thing that social-science genomics can do is help researchers control for confounding genetic variables that are almost universally overlooked.
Harden was not surprised to hear that the policy had no discernible effect. Her own research showed that, when identical-twin sisters have marriages with different levels of conflict, their children have equal risk for delinquency. The point was not to estimate the effects of DNA per se, but to provide an additional counterfactual for analysis: would an observed result continue to hold up if the people involved had different genes? But Winthrop was a Puritan rather than a Pilgrim, and set sail on board the Arbella rather than the Mayflower.
It's a subtle but important difference. Unlike the Pilgrims, the Puritans, who arrived 10 years later, were not separatists.
They had remained in the Church of England hoping to banish its Catholic ways from within. The Massachusetts Bay Colony that they founded to the north, the settlement that became Boston, was far more influential in the shaping of America than the Plymouth Plantation. Taken together, though, the legacy of the pilgrims and the puritans is foundational.
The work ethic. The fact Americans don't take much annual holiday. Notions of self-reliance and attitudes towards government welfare. Laws that prohibit young adults from drinking in bars until the age of A certain prudishness.
The religiosity. Americans continue to expect their presidents to be men of faith. In fact, no occupant of the White House has openly identified as an atheist. Also the profit motive was strong among the settlers, and with it the belief that prosperity was a divine reward for following God's path - a forerunner of the gospel of prosperity preached by modern-day television evangelists. All these national traits have traceable roots to the Puritans.
The Frenchman Alexis de Tocqueville even wrote in his seminal work, Democracy in America: "I think we can see the whole destiny of America contained in the first Puritan who landed on these shores. The Pilgrim Fathers - or more accurately, the Pilgrim Mothers - also created a gene pool from which tens of millions of Americans continue to draw.
So many US citizens claim to have ancestors who arrived on the Mayflower that you'd be forgiven for thinking this three-sailed vessel was the size of an aircraft carrier. For all that, just about the only time the Pilgrim Fathers loom large in the national imagination is on Thanksgiving, that pre-Christmas feast of turkey and pumpkin pie when the whole of America comes to a calorific halt. This national holiday derives from the celebration marking the first harvest in , when the colonists sat down with the Wampanaog Native Americans.
It's been packaged up as an act of peaceful co-existence, a convivial banquet which suggests that the Pilgrim Fathers were welcomed by indigenous Americans with open arms. Yet most of what American schoolchildren are taught about that holiday does not withstand close scrutiny.
It's a mythology, not a history. There are the inconsequential inaccuracies. It's thought, for example, that venison was the main meat on offer. The modern-day menu of turkey and pumpkin pie was invented by a 19th Century magazine publisher, the Martha Stewart of her day, who had read about that first feast and lobbied Abraham Lincoln to turn Thanksgiving into a national holiday.
But it's the larger fiction that's more damaging. In a fraudulent retelling, the place of the Native Americans at that table has commonly been misappropriated and misunderstood. Thanksgiving has encouraged the idea that indigenous Americans gladly greeted white, European settlers; helped teach the new arrivals how to survive in the New World; lived together harmoniously; joined together for this slap-up celebration and then vanished from the story.
It's a narrative of colonial validation; of contrived acceptance; of white comfort. It's a storyline that accepts at face value a colony seal designed by the Massachusetts Bay Colony which showed a half-naked indigenous American pleading with the English to "Come Over and Help Us. Native Americans became victims of the colonists; prey to their land grabs, the exploitation of their natural resources and the fatal diseases imported from Europe from which they had no immunity.
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