A U.S. 'OFFICIAL SECRETS ACT'?

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP91-00561R000100020051-3
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 2
• Document Creation Date: December 22, 2016
• Document Release Date: February 17, 2012
• Sequence Number: 51
• Publication Date: February 24, 1985
• Content Type: OPEN SOURCE

STAT
Declassified in Part - Sanitized Copy Approved for Release 2012/02/21 : CIA-RDP91-00561 R000100020051-3
ARTU 1E APPEARED
Q!, PAGE C ' `J
6
WASHINGTON POST
24 February 1985
.A U.S. `Official Secrets Act'?
If Leaking Becomes a Crime, Free Debate May Be the Prisoner
By Morton H. Halperin
U NLIKE BRITAIN and many
other democracies, most of
us believe, the United States
does not have an "official secrets
act" making it a crime for officials to
disclose, and newspapers to publish,
"national security" information that
the government seeks to keep'se-
cret.
But the Justice Department has i
initiated, a little-noted prosecution
that, if successful, would establish a
precedent amounting to a sweeping
official secrets act in the United
States.
The case involves a government
employe, Samuel L. Morison grand-
son of historian Samuel Eliot Mori-
son, who has been charged with giv-
ing U.S? .government photographs of
a Soviet aircraft carrier under con-
struction in a Black Sea shipyard to
a magazine that printed them. The
government has said that it will
demonstrate that the photographs
relate to national defense because
they reveal American intelligence
gathering capabilities and targeting
priorities.
If the government's view of the
statute involved is sustained by the
courts and found to be constitution-
al, then the daily practice of "leak-
ing" to the media, by which the pub-
lic learns most of what it knows
about national security policy, would
be drastically curtailed. (The
charges against Morison carry a
maximum penalty of 40 years in
prison and a $40,00-0 fine.)
In its case against Morison, the
government has taken the position
that unauthorized retention of a clas-
sified document relating to national
defense is a violation of the law.
under this reading, anyone - in-
cluding members of the press -
who fit the government's interpreta-
tion presumably could be prosecut-
ed. The government asserts that it
need not even prove that the person
transferring the information in-
tended to harm national security or
that the information, was given to a
foreign government - hostile or
friendly.
Despite its potentially momentous
consequences, this case has received
remarkably little attention. The gov-
ernment has- charged that Morison. an employe of the Naval Intelligence
Support ommand gave a copy o a
classified photograph to Jane's De-
fence Weekly published .in London
by Jane's Publishing Co., widely re-
spected defense analysts.
These facts alone, the govern-
ment asserts, constitute violations of
both the espionage law enacted in
1917 and a separate law relating to
theft of government property. (No
one at Jane's has been indicted -
possibly because its editors are all in
England.) Morison's attorneys have
argued that the government's prose-
cution is based on a willful misinter-
pretation of congressional intent;
U.S. District Court judge Joseph H.
Young in Baltimore is expected to
rule on the question within the next
few weeks.
he overnment has sought to
use t the espionage and theft
statutes only once before in
our history to prosecute someone
for transfering national security in-
ormat tion to the press. That was the
Pentagon Papers case in which Dan-
iel Ellsberg was indicted; the case
was dismissed because of pervasive
government misconduct, leaving no
definitive ruling on the meaning of
the statute or its constitutionality.
Apart from the Pentagon Papers
case, the government and the press
have proceeded until now as if there
were no legal prohibitions on the
transfer of national security informa-
tion to the press. The arguments in
favor of this view of the law are
based on the intent of Congress as
documented in the legislative history
of the two statutes, on constitutional
guarantees of a free press and on a.
view of sound public policy.
One of the statutes on which the
government relies in the Morisori
case is that portion of the ?"espio-,
nage" laws that does appear to
make the unauthorized transfer of
national defense information a
crime. As drafted, the statute seems
to require proof of nothing more
than that an unauthorized transfer of
classified information occurred.
However, that interpretation makes
no sense in light of the care that
Congress took in drafting the na-
tion's first espionage law in 1917.
The debates in both houses are re-
plete with references to the impor-
tance' of public debate and the need
to be sure that the statute would not
reach publication of information but
only covert transfers to foreign
powers.
Moreover, if the government's
reading of the statute is correct,
why did Congress later enact other
statutes making it a crime for gov-
ernment officials to reveal specific
categories of classified information
such as codes, communications and
the identities of covert agents? And
why would the Congress have ex-
haustively debated the safeguards it
eventually built into these later stat-
utes to protect the press?
A 1973 article in the Columbia
Law Review - widely considered
as definitive on the legislative his-
tory concluded that the general
espionage laws were not intended by
Congress to cover transfer of infor-
mation for publication.
Moreover, if the statute were
given the interpretation the govern-
ment is urging now, it would violate
Eontn lii ,'rt
Declassified in Part - Sanitized Copy Approved for Release 2012/02/21 : CIA-RDP91-00561 R000100020051-3
 Declassified in Part - Sanitized Copy Approved for Release 2012/02/21 : CIA-RDP91-00561 R000100020051-3
the First Amendment by allowing
the Government to circumscribe de-
bare on national defense policy sim-
ply by throwing a classified screen
around pertinent information.
Where the government is seeking
to prevent publication of informa-
tion, the Constitution demands that
the government demonstrate that,
that publication would cause very
severe damage and that both the
government official and the press
were on clear notice of what infor-
mation may not be published. Other-
wise, with both the press and public
officials left to operate in a vague
area, the chilling effect on national
security debate would be very se-
vere. The First Amendment does
not tolerate such restrictions--on
public debate.
The government's efforts to use
the theft of government property
statutes in this situation rare simi-
larly flawed. If Congress had in-
tended the theft statutes to cover
transfer of information, it would not
have - as it has on a number of oc
casions - engaged in long debates
about whether to make the transfer
of specific categories of information
a crime and what safeguards to build
into the statutes.
Applying-the theft statutes to
unauthorized; disclosure of informa-
tion would involve even more
sweeping ?restrictions than use of
the espionage laws because the theft
statutes would not be limited to na-
tional security information, Thus the
public interest would be best served
by - the government's abandoning,
this prosecution, or by the court's
rejecting the effort to use these sfa t-
utes in this manner.,
The government does not have to
be helpless in the face of publication
of information in situations where
great harm would result. But it must
seek narrowly drawn statutes with
careful safeguards, as it has in the
past.; Such statutes would escape.
successful constitutional challenge,
even if they apply to the press as
well as to government officials, if
they are precisely drafted and Jim-'
ited to clearly definable categories
of information that must be kept se-
cret.
The government has never asked
Congress to prohibit unauthorized
disclosure of satellite photographs,
which are said to be involved in this
.case. If asked, Congress almost cer-
tainly would do so. However, in the
absence of such a statute, convicting
Morison would give the government
a virtually unlimited authority to re-
strict what we can read about na-
tional security matters - an author-
ity that no, administration could= re-
Morton-H. Halperin directs a project
for the American Civil Liberties
Union, which is participating in
Samuel Morisons legal defense.
2,
Declassified in Part - Sanitized Copy Approved for Release 2012/02/21 : CIA-RDP91-00561 R000100020051-3