SPY LAWS V. THE NEWS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87M01152R000100070012-6
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 7
• Document Creation Date: December 22, 2016
• Document Release Date: November 30, 2009
• Sequence Number: 12
• Publication Date: September 7, 1985
• Content Type: OPEN SOURCE

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Office of Legislative Liaison
Routing Slip
15. Legislation
88
8.
27 Sept AS
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==
ROUTING AND RECORD SHEET
SUBJECT: (Optional)
ST
FROM: EXTENSION NO.
Assistant General Counsel
Logistics and Procurement Law DATE
Division, OGC 26 Septpmher 1989
TO: (Officer designation, room number, and
DATE
building)
OFFICER'S
COMMENTS (Number each comment to show from whom
RECEIVED
FORWARDED
INITIALS
to whom. Draw a line across column after each comment.)
1? Director,
I notice that CIA will be
Office of Legislativ
e
invited in the very near
Liaison
future to provide testimon
2. 7 D 43 HQS
y
to the Criminal Justice sub-
committee of the House
Judiciary Committee on a
li-
pp
3.
cation of the espionage laws
to persons who leak classi-
fied information to the
ress
4.
p
When this happens, the fol-
lowing bit of historical
'5'
background information may
be of interest.
6.
ST/
7.
8. CC: General Counsel
w/at
9.
10.
11.
12.
13.
14.
15.
FORM bl ? USE PREVIOUS
I-79 EDITIONS
141 FILE ~~.L l r'K s
ROC2 #
E La
AT
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25SEP1985
iiCLE APPEARED EDITOR & PUBLISHER 4/yd
Spy laws the news
n upcoming House hearing on U.S. espionage laws may turn into
an Inquiry on how the press handles classified information
mes E. Roper cress Act of 1911 v. under8 classiwhich f not ed in only
the testi-
the official providin source, may prepare one ifs on what
mony produces a consensus on what
use subcommittee has de- formation but the newspaper that
hold hearings on the nation's to do. publishes it can be prosecuted. some
Besides Conyers, members are
Democrats Don Edwards, Calif.; Bar-
A subcommittee source says hearing testimony at
the occasion to examine the members after
he news media in publishing the
ney Frank, Mass.; Howard L. Ber- man, Calif.; and Frederick C.
forthcoming hearings may want to
use the espionage laws to curb report-
Boucher, Va.; and Republicans
arings, tentatively set to be-ing by news media. Other members George W. Gekas, Pa.; Patrick L.
19, will be conducted by the are described as steaffastly"6pposed Justice subcommittee of the
Swindall, Ga.; and Howard Coble.
to any such suggestion. Still other
The Morison case has been set for
udiciary Committee, under members are said to be uncertainu s Subcommittee (;hairman Conyers,
about press issues that may arise.
bcommittree source
a director of ft American Civil
ome members after Liberties Uni:gt~eemed likely to A
/awyerforthe
defend press ions. He intends
n
g testimony at the to
American Civil Ubertles
invite testimony from
representa-
Union, Morton H.
oming hearings tives of m0dia groups such as the Re- Union
ant to use the porters Committee for Freedom of pa
w
the Pres .
n
age /eW8 t0 CUrb
He also will invite testimony from
i
ng by news media. the Reagan Administration and feder-. of Great Bri
8ivinB them
al security organizations, the opportunity to explain licies to-
manship of Rep. John J. Con- Po
_.. Per
ward applying espionage laws to -
sons who leak classified information
uiry was provoked mostly to
news reporters,, or to reporters or
ons of spying by ex-Navy newspapers who publish the informa- more Oct. 8. Already, lawyers for the
hn Walker and his son, tion.
'he investigation. however, , have the indictment dismissed. They
For more than three months John
eyond the problem of so- hn argued that the espionage laws were
Martin, chief of the Internal Security
ressional spies. Section of the Criminal Division of the
ok into the case of Samuel
Justice Department, has been un-
an analyst at the Naval In-not the American press. They said the
Support Center. Working statutes were "impermissibly vague
er and with his superior's p pp to the
and overbroad"
The j 's opinion
e, he sold classified in-
drew an editorial from
to lane's Defense Weekly,
the Washington Post
a satellite picture showing ngto , news reporter.
one by an explosion at Be ph H.
which cautioned against U.S.
mrsk, a Soviet naval base
the U.S.
on the Kola pemnsu-rruss the indictment, declared March
anti-espionage laws of
s indicted last October on
h12: "If Congress had intended this
arges of violating espio- 19171
nto an Official
- situation to apply only to the classic
specifically, unautho-
Secrets Act.
ession of classified docug nt of a
ft and conversion of gov-
roperty, and transmittal of available
to a reporter seeking clar-
data to a person "not enti- ifcation ofadministration policies to- using the words 'transmit ... to an
-ive them."
ward the espionage laws and the agent of a foreign government.'
r for the American Civil press. "In 18 U.S. Code paragraph 749.
Union, Morton H. Halper- The House Judiciary subcommittee p y , poscribes the action with enforce- does not have a specific bill to debate,
reat Britain's Official Se- but, according to a subcommittee
A
By Ja
A Ho
cided to
mayuse
t role of
e Theh
gin Sept.
Criminal
House J
s A
heart
forthc
may
lo
report
r the chaff
The inq
by allegati
b will go
It will 1o
Morison,
telligence
as a string
knowledg
formation
including
r near Mu
a Ia. He w
criminal c
nage laws
rized poss
ments, the
ernment p
classified
Liberties
in, comp
ment of G
7 September 1985
Halperin, compares the
action with enforcement
tain's Official
Secrets Act of 1911.. .
trial in U.S. District Court in Balti-
defendant have lost an attempt to
written to prevent transmission of
classified material to foreign powers,
when a lied
leak of classified information from a
federal employee to an American
.S. Distict Judge Jose
Young in Baltimore, in refusing to dis-
formation is leaked to an a e
foreign and presumably hostile aov-
ernment, then it could have said so by
Congress did recisel that
ing the gathering or delivering of
Con wd
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national defense information to a
foreign government or to an agent,
employee, subject or citizen thereof.
Section 793, on the other hand, pros-
cribes disclosure of national. defense
information to those 'not entitled to
receive it.' .
"Finally, the danger to the United
States is just as great when this in-
formation is released to the press as
when it is released to an agent of a
foreign government. The fear of re-
leasing this type of information is that
it gives other nations information con-
cerning the intelligence gathering
capabilities of the United States. That
fear is realized whether the informa-
tion is released to the world at large or
whether it is released only to specific
spies.
"Defendant claims that by enforc-
ing this statute in the present case in-
volving the release of information to
the press, this court would be writing
a new law, a task, it is argued, better
left to Congress. On the contrary, to
read into the statute the requirement
that it apply only in 'classic espio-
nage' cases where the disclosure is to
an agent of a foreign government
would be to ignore the plain language
of the law as presently written."
Judge Young acknowledged, "As
the defendant properly notes, there
has been no definitive court test of the
applicability of 18 U.S. Code para-
graph 641 (another part of the so-
called espionage laws barring theft of
government property) to unauthor-
ized disclosure of classified
information."
He continued: "Defendant has
argued that even if paragraph 641 can
be applied to the unauthorized taking
of government information in this
case, it should not be applied where
the taking involves public disclosure
in circumstances which implicate
First Amendment issues. Defendant
argues that in all cases in which para-
graph 641 has been applied to the theft
of information, the information was
being acquired for private, covert use
in illegal enterprises...
"Defendant argues that using para-
graph 641 to regulate the disclosure of
government information gives execu-
tive branch officials unbridled discre-
tion to enforce the statute and thereby
control the flow of government
information to the public.... Thus,
government officials would be free to
enforce their own information control
policy, and liability may turn on
nothing more than the fact that the
disclosure embarrasses them or
subjects them to public criticism.
"These arguments have little to do
with this case. It is most doubtful that
Morison was asserting a First Amend-
ment right in selling photographs and
documents to Jane's..... It is clear
that having decided that disclosures
of classified 'information may be
prosecuted under paragraph 641, the
defendant's motive in disclosing
classified information is irrelevant."
The judge's opinion drew an edito-
rial from the Washington Post, which
cautioned against turning the U.S.
anti-espionage laws of 1917 into an
Official Secrets Act.
"The difficulty always arises in de-
termining which information is poten-
tially damaging to national security
and which is simply embarrassing to
the government in power," said the
Post editorial. "Which whistle blow-
ers do a service by forwarding in-
formation to Congress and the press
and which - can you think of a single
case? - actually put the country in
jeopardy? In a society dependent on
informed debate, the presumption
must be that the work product of the
government belongs to the people.
"The exceptions - real military
secrets, not, for instance, cost over-
runs - must be few and far between
and covered by carefully crafted stat-
utes. Broad secrecy laws cripple a
free society and must be resisted."
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Intelligence
inthe
War of
Independence
A Bicentennial Publication of the
Central Intelligence Agency Washington, D.C.
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 fa
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The Committee of Secret Correspondence
Recognizing the need for foreign
intelligence and foreign alliances, the
Second Continental Congress created the
Committee of Secret Correspondence by a
resolution of November 29, 1775:
"RESOLVED, That a committee of five
be appointed for the sole purpose of
corresponding with our friends in Great
Britain, Ireland and other parts of the
world, and that they lay their
correspondence before Congress when
directed.
is "RESOLVED, That this Congress will
make provision to defray all such
expenses as they may arise by carrying on
such correspondence, and for the
payment of such agents as the said
Committee may send on this service. "
The five Committee members-America's
first foreign intelligence directorate-were
Benjamin Franklin of Pennsylvania,
Benjamin Harrison of Virginia, John Jay of
New York, John Dickinson of Pennsylvania
and Thomas Johnson of Maryland.
Subsequent appointees included James
Lovell, a teacher who had been arrested by
the British after the Battle of Bunker Hill on
charges of spying. He had later been
exchanged for a British prisoner and was
then elected to the Continental Congress. On
the Committee of Secret Correspondence he
became the Congress' expert on codes and
ciphers.
Thomas Paine, author of "Common
Sense," was briefly the secretary of the.
Committee, but was discharged for divulging
information from Committee files.
to
The Committee employed secret agents
abroad, established a courier system, and
developed a maritime capability apart from
that of the Navy. It met secretly in December
of 1775 with a French intelligence agent who
visited Philadelphia under the cover of a
"Flemish merchant," and engaged in regular
communications with Britons and Scots who
were sympathetic to the patriots' cause.
On April 17, 1777, the Committee of
Secret Correspondence was renamed the
Committee of Foreign Affairs, but continued
with its intelligence function. Matters of
diplomacy were conducted by other
committees or by the Congress as a whole.
With the creation of a Department of Foreign
Affairs-the forerunner of the Department
of State-on January 10, 1781,
correspondence "for the purpose of
obtaining the most extensive and useful
information relative to foreign affairs" was
shifted to the new body, whose secretary
was empowered to correspond "with all
other persons from whom he may expect to
receive useful information. . . "
Virsv C~4 S%kL+%kk }
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d'Estaing's French fleet cast anchor in the
Delaware River. France was in the war; the
mission to Paris had succeeded.
Spain, at the urging of French Foreign
Minister Vergennes, matched France's one
million livres for the operation of Hortalez et
Cie. But that was not the beginning of secret
Spanish aid to the patriots. During the
summer of 1776 Luis de Unzaga y Amezaga,
the governor of New Spain at New Orleans,
had "privately delivered" some twelve
thousands pounds of gunpowder, "out of the
King's stores," to Captain George Gibson
and Lieutenant Linn of the Virginia Council
of Defense. The gunpowder, moved up the
Mississippi under the protection of the
Spanish flag, made it possible to thwart
British plans to capture Fort Pitt.
Oliver Pollock, a New Orleans business-
man, had interceded on behalf of
the Virginians. When Bernardo de Galvez
became governor at New Orleans, Pollock-
soon to be appointed the agent of the Secret
Committee at New Orleans-worked closely
with the young officer to provide additional
supplies to the Americans. The Spanish
governor also agreed to grant protection to
American ships while seizing British ships as
"smugglers," and to allow American
privateers to sell their contraband at New
Orleans. Havana, too, became a focal point
for dispensing secret Spanish aid to the
American revolutionists.
From Galvez the patriots received
gunpowder and supplies for the George
Rogers Clark expedition, and from Galvez'
"very secret service fund" came the funds
used by Colonel Clark for the capture of
Kaskaskia and Vincennes.
When Spain formally entered the war on
the American side on June 21, 1779, Oliver
Pollock-who suffered personal bankruptcy
in funding the purchase of supplies for the
patriot cause-rode as aide-de-camp to
Galvez in the capture of Baton Rouge,
Natchez, Mobile, and Pensacola.
Another center of secret aid to the patriots
was St. Eustatius Island in the West Indies. A
Dutch freeport set in midst of English,
French, Danish and Spanish colonies, St.
Eustatius became-in the words of a British
intelligence document of the period-"the
rendezvous of everything and everybody
meant to be clandestinely conveyed to
America." It was a major source of
gunpowder for the patriot cause, and
perhaps the safest and quickest means of
communications between American
representatives and agents abroad and with
the Continental Congress at home.
The Continental Congress, sensitive to the
vulnerability of its covert allies, respected Conrad Alexandre Gerard
their desire for strict secrecy. Even after
,France's declaration of war against England,
the fact of French involvement prior to that
time remained a state secret. When Tom
Paine, in a series of letters to the press, ,
divulged details of the secret aid from the
files of the Committee of Foreign Affairs
(formerly the Committee of Secret
Correspondence), France's Minister to the
United States, Conrad Alexandre Gerard,
protested to the President of the Congress
that Paine's indiscreet assertions "bring into
question the dignity and reputation of the
King, my master, and that of the United
States." Congress dismissed Paine, and by
public resolution denied having received
such aid, resolving that ". . . His Most
Christian Majesty, the great and generous
ally of the United States, did not preface his
alliance with any supplies whatever sent to America.
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