CIA THREAT TO USE OBSCURE LAW OVER LEAKS SCRUTINIZED

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP91-00561R000100110031-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 2
• Document Creation Date: December 22, 2016
• Document Release Date: February 7, 2012
• Sequence Number: 31
• Publication Date: May 12, 1986
• Content Type: OPEN SOURCE

Declassified and Approved For Release 2012/02/08: CIA-RDP91-00561 R000100110031-5
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LOS ANGELES DAILY JOURNAL(CA)
12 May 1986
CIA Threat to Use
Obscure Law Over
Leaks Scrutinized
Media Ready Defense
By CHARLEY ROBERTS
WASHINGTON -CIA Director William
Casey has media attorneys and Justice Do-
pastment lawyers poring over dusty law
books and musty legislative histories trying
to determine whether be can make good on
his threat to see The Washington Post pros-
ecuted if it publishes a story concerning U.S..
intelligence-gathering capabilities.
So far, the consensus among those lawyers
Is that the rarely used espionage statute re-
ferred to by Casey in meetings with Post edi-
tors and Justice Department officials does
apply to the press.
"But the hard question," said the Post's
counsel, Boisfeuillet Jones, is not whether
we are covered (by the statute) but whether
the story causes damage." The Pod will
have to weigh the competing public and na-
tional security Interests, be said.
Leonard Downie Jr., the Pod's managing
editor, said the newspaper's attorneys are
researching the law to determine whether
the story would violate national security.
"The statute and the legislative history indi-
cate (the law) does apply, but we believe it
shouldn't." No decision has been made on
when, or if, the story will run, he said.
Meanwhile, Patrick Korten, a Justice De-
partment spokesman, said criminal division
lawyers are preparing their recommenda-
tion for Attorney General Edwin Meese In
the event the Post decides to publish. Be-
yond that, department officials were observ-
ing a "strict no-comment order" on the
matter. Tile CIA was similarly silent.
The statute getting all of this sudden atten-
tion is section 798 of Title 18 of the U.S. Crim-
inal Code. Adopted in 1950, as part of
Congress' revisions to the Espionage Act of
1917, the section has seen little use.
Casey sent lawyers scrambling to their
law libraries when he met In separate meet-
ings on May 2 with Deputy Attorney General
Lowell Jensen and Pod editors Benjamin
Bradlee and Downie.
He reportedly told Jensen that five news
organisations had.:,viala0ed the stsilnte,
which prohibits "knowingly aiid' dully"
communicating, furnishing, transmitting or
"publishing" any classified information con-
cerning "communication intelligence activ-
ities of the United States or any foreign
government."
Libya Cables Cited
In his meeting with Bradlee, the Post's ex-
ecutive editor, and Downie, Casey report-
edly named the five organizations as the
Washington Post, Newsweek, The Washing-
ton Times, The New York Times, and Time
magazine. He cited news reports in the Post
and Newsweek on messages intercepted by
the U.S. between the Libyan capital and its
embassy In East Berlin. And be warned that
the Post editors that they might be pros-
ecuted if they published a story purportedly
in the works about U.S. intelligence capablli-
a The possibility of actually using the stat-
ute Increased last week when White House
spokesman Larry Speakes said "anyone
who violates the law should be prosecuted,"
and added that a decision whether to pros-
ecute would be left up to the Justice Depart-
ment. And Sen. David Durenberger, R-
Minn., chairman of the Senate Select Com-
mittee on Intelligence, said Casey "has a
right to drag out this dusty old statute and
say this has got to be brought to a halt."
The statute carries a maximum punish-
ment of 10 years In prison and a $10,000 fine.
But it has never been used against a news or-
ganization.
A celebrated instance in which the statute
was used was the trial of Christopher Lee
Boyce, who copied secret intercepts from a
code vault In Redondo Beach and sold the in-
formation to Soviet agents in Mexico City.
He was convicted in 1977 and sentenced to 40
years in prison.
The statute also surfaced in the confirma-
tion bearings of former New York Times re-
porter Richard Burt to be assistant
secretary of state.
Other Disclosures
Sen. Orrin Hatch, R-Utah, a member of
the Senate Intelligence panel, questioned
whether anyone could be prosecuted under
section 798 if Burt were confirmed to the
position. Burt had written a story that dis-
closed the existence of a satellite intelli-
gence system with a listening pod In
Norway.
But Secretary of State George Schultz said
at the time that the person leaking the
material, not the one publishing it, should be
prosecuted. Burt was confirmed.
A more recent case, involving former na-
val intelligence analyst Samuel Loring Mori-
son, was prosecuted under section 793 of the
act, and has no bearing on the present con-
troversy, according to First Amendment at-
torneys.
But, according to one media attorney who
asked not be identified, shortly before Mori-
son was Indicted, CIA Director Casey pre-
sented proposed legislation to the White
House to make it a crime to disclose secret
Information without a showing of harm or
the receipt of payment. Casey purportedly
argued that the current statutes were insuf-
ficient to deal with security leaks. But the
White House declined to push the proposal,
said the attorney.
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The CIA declined to comment on the
matter.
Even if the government should decide to
prosecute, media attorneys and legal schol-
ars believe there are plenty of defenses
available.
Benno Schmidt Jr., a professor and for-
mer dean of the Columbia University law
school, said a news organization could de-
fend itself under the First Amendment as
publishing material relative to a matter of
public debate as well as raising a challeging
the classification of the material as secret.
Bruce Sanford, the First Amendment
counsel for the Society of Professional Jour-
nalists, Sigma Delta Chi, said a prosecution
under the statute would lead to an "Alice in
Wonderland" situation in this case. He said
that President Reagan himself revealed
material from several of the messages cited
by Casey in the Post and Newsweek articles
when be delivered a televised address to ex-
plain why U.S. aircraft had bombed Libya
on April 14.
Sanford said that allowing the president,
in effect, to declassify the information and
then reclassify it secret and prosecute news
organizations for publishing it would never
pass constitutional muster.
Schmidt, who published an article in 1973
on the communication intelligence statute
involved here, pointed to another potential
defense: "implied authority" to publish the
material if the "leak" came from some high
government official or the material could be
shown to have been in the public domain.
A Reminder to the Media?
Sanford said he believes there will not be
any prosecution, whether or not the Post
publishes its story. He believes Case 's
warning was simply the s a e or
remind the media and government officials
that leaks can hamper intelligence gather-
Over the past five years, he said, the Rea-
gan administration has tried to do that sym-
bolically through various actions, such as
the Morison case and the recent firing of an
assistant undersecretary of defense who al-
legedly gave reporters information about a
decision to give Stinger missiles to rebel
forces in Angola and Afghanistan.
But a prosecution of a news organization
under this statute would be a mistake, said
Sanford. And that is probably not want Ca-
sey intended.
"In the intelligence world," said Sanford,
"Not all is what it seems. And Casey is
steeped in the intelligence world."
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