LEAKING CLASSIFIED INFORMATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP88-01070R000301660004-0
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 12
• Document Creation Date: December 22, 2016
• Document Release Date: January 8, 2010
• Sequence Number: 4
• Publication Date: April 10, 1985
• Content Type: OPEN SOURCE

Approved For Release 2010/01/08: CIA-RDP88-01070R000301660004-0
RADIO TV REPORTS, INC.
4701 WILLARD AVENUE, CHEVY CHASE, MARYLAND 20815 [phone]
DATE April 10, 1985 10:05 P.M. CITY Washington, D.C.
Leaking Classified Information
DIANE REHM: A few weeks ago, the CIA proposed prison
terms for government employees who leaked classified information.
Their proposal, a so-called legislative trial balloon, has been
dropped. But the Administration has made no secret of its
support for tighter controls on classified information leaks. The
Justice Department believes such disclosures already violate
criminal laws, and they've moved to prosecute an employee who
sent sensitive military photographs to a magazine.
George Carver is a former CIA official who believes we
do need better controls on our classified documents. He's now
with Georgetown Center for Strategic and International Studies.
Stewart Taylor is a legislative correspondent for the
New York Times. He's been covering the proposed Secrecy Act.
Mr. Carver, do we really need a Secrets Act?
GEORGE CARVER: Well, we don't need an Official Secrets
Act, I don't think, because I doubt if one closely modeled along
the British 1911 act, modified in 1920, would pass constitutional
muster here in the United States. But I do think that we need
some ratchet-tightening and the government needs a more effective
arsenal of legal devices and weapons, if you will, to protect
legitimate secrets than it now has in Section 793 and 794 of
Title 18, U.S. Code, the so-called espionage statute; and Section
798, the so-called comment (?) statute.
REHM: Have there actually been incidents where the
security of the United States was placed in jeopardy because of
such leaks?
OFFICES IN: WASHINGTON D.C. ? NEW YORK ? LOS ANGELES ? CHICAGO ? DETROIT ? AND OTHER PRINCIPAL CITIES
Matey?is,ppi& Approved For Release 2010/01/08: CIA-RDP88-01070R000301660004-0 yorexhibited.
 Approved For Release 2010/01/08: CIA-RDP88-01070R000301660004-0
CARVER: Well, again, it's hard to discuss jeopardy in
detail deriving from a leak without compounding the damage thus
done. But there has been -- you can get, for example, for the
price of a subscription, or even a single copy of Aviation Week,
information about the details of U.S. military activities and
capabilities that it would require millions of dollars and years
to acquire if you tried to collect similar information on our
potential adversaries.
And we also have a very serious problem, that I was
discussing with Mr. Taylor before we went on the air, that
people, individuals overseas in liaison services overseas are
very skittish about sharing their information or cooperating with
the the United States, since they believe that we can't even
protect our own secrets; therefore we're unlikely to be able to
protect theirs.
REHM: Mr. Taylor, how do you see it?
STEWART TAYLOR: I think there's probably no disagree-
ment that the government has some sensitive military/diplomatic
intelligence secrets that need to be protected: the names of
undercover intelligence agents, for example. And I think most
journalists go to considerable pains to try to avoid, inadvert-
ently or deliberately, publishing that kind of information.
I think the disagreement comes over where you draw the
line between what is a legitimate military or intelligence secret
and what is the public's business, what kind's of information
raise policy issues that perhaps should be publicly debated. I
think in this country we have a tradition of an open society, and
the presumption has traditionally been that things should be the
public's business unless a strong showing has been made that they
should be secret.
Although I wouldn't rule out the possibility that some
new legislation or regulations could be drawn up that would
increase the government's ability to protect legitimate secrets
without unduly restricting the openness of our society, I do
think that those proposals that have been made so far...
TAYLOR: Such as the CIA proposal -- are quite broad and
sweeping, and have somewhat disturbing implications, in the sense
that I think Congress and the public, as well as the press, have
traditionally relied on some give-and-take between civil servants
and others in the government who may disapprove of things that
are being done at higher levels. For example, giving out
information that enables the rest of us to have a look at what
Approved For Release 2010/01/08: CIA-RDP88-01070R000301660004-0
 Approved For Release 2010/01/08: CIA-RDP88-0107OR000301660004-0
the government is doing, as part of the process of governance.
And a proposal that says anytime the higher-ups decide to stamp
"secret" on a document, it's a crime for anyone else to disclose
it, I think, could change the nature of our society.
CARVER: Well, Stewart has raised a number of important
points, some of which I agree with, some of which I would
interpret slightly differently.
I think that the government does have certain secrets
that it has to protect in order to do what the Constitution said
in its Preamble it was organized to do, which among other things
is promote the general welfare and secure the blessings of
liberty to ourselves and our posterity, and to provide for the
common defense.
Now, Harry Truman, in typical salty directness, I think
put his finger on the nub of the problem in an October '51 press
conference when he said, "Whether it be treason or not, it does
the U.S. just as much harm for its military secrets to be made
known to potential enemies through open publication as it does
for military secrets to be given to an enemy through the cland-
estine operation of spies." And this is a problem.
The problem is compounded by something with which all of
you and most of your listeners are doubtless aware, but doesn't
get very much discussed. Because of modern technology, because
of the pervasiveness and near-instantaneous quality of communi-
cations, there is no way you can tell anything to, quote-unquote,
the American people without simultaneously telling it to every
interested government, intelligence service, general staff around
the world.
And, therefore, the kinds of open debate on which we
pride ourselves carry a cost. And this involves a kind of
delicate trade-off of balances, and sometimes competing equities.
And I think it's where and how you effect the trade-offs that the
debate is most usefully focused, not on the absolutist position
on either side: that the government can classify anything it
wants to, which is the sort of purist position, governmentally;
or the the absolutist civil libertarian position that the
government is entitled to no secrets at all, save those which
journalists feel that it might be allowed to keep.
REHM: Of course, there is a rather decided difference
between endangering the country and embarrassing the government.
I think of the recent case involving New York Times reporter
Leslie Gelb, which involved the publication of material that
apparently had already been published elsewhere. Mr. Gelb was
Approved For Release 2010/01/08: CIA-RDP88-0107OR000301660004-0
 Approved For Release 2010/01/08: CIA-RDP88-0107OR000301660004-0
excluded from seeing State Department officials as a result of
that publication.
Are we talking about sensitivities, or are we talking
about risks to the national security? Mr. Taylor?
TAYLOR: I think that's -- the Les Gelb example is a
very good one, because Mr. Gelb had spoken with high-level State
Department officials before he published his article and had
something of an understanding with them that they would give him
certain information, since he already knew what had been publish-
ed abroad, and he would try to take care not to publish new
secrets that had not already been published abroad. And I think
he carried through on that.
The Secretary of State, George Shultz, following up on a
stronger reaction by one of his subordinates, told Congress, in
testimony, that serious damage to the United States had been done
by Mr. Gelb's article. When he was asked how it was that he
could say this when the same information had been previously
published abroad, he said: well, in essence, the New York Times
is a large, important news organization. What they say is taken
more seriously.
Although he didn't quite specify it, I think it's fairly
clear that what Mr. Shultz was disturbed about was not that
foreign intelligence agencies or the Russians or the Libyans were
learning something from the New York Times they didn't already
know. What he was disturbed about was that the countries in
which nuclear depth charges might be placed, under certain
contingency plans, such as Iceland, that their populations might
be roused into some level of political dissent by the widespread
publication of such information -- i.e., this was a case of
political inconvenience, not, I think, of a real military secret
at that point.
And just to finish on that, I think there are a lot of
examples like that. And I think, although again the press will
try to avoid, generally speaking, publishing real military
secrets, I think that we part company with the government's point
of view when the government says, "You shouldn't publish things
that cause us political inconvenience or embarrassment in
formulating our military plans."
CARVER: Well, the Gelb case, or situation, takes us a
little bit off track, but it takes us into a very important, I
would consider important, area.
One of the great problems about the article that Leslie
Gelb wrote, the fellow who took exception to what he said was his
successor in the same State Department job that Gelb had once
Approved For Release 2010/01/08: CIA-RDP88-0107OR000301660004-0
 Approved For Release 2010/01/08: CIA-RDP88-0107OR000301660004-0
held. And I, frankly, regard it unconscienceable [sic] for a
person to come out of the journalistic profession, take a
government job of great sensitivity, and then go back as a
journalist and write articles about his former duties. To me, I
mean it is -- I know from having been in the government for 26
years -- you talk about chilling effect. It would be an extreme-
ly chilling effect, chilling to have to sit down around a table,
discussing a very sensitive issue with a high-level counterpart
in the State Department, knowing in the back of your mind that
six months later he is going to be back in the New York Times and
might not respect the sanctity of privacy of the discussions that
you've been holding.
TAYLOR: I'd like to defend my colleague Mr. Gelb. I
think Mr. Gelb has throughout his career been very careful not to
disclose secrets to which he gained access while he was in the
government. And this case of the nuclear depth charges was not a
case of that. He was disclosing information he obtained after he
left the government, as a reporter, just the way I would obtain
it. And I've never worked for the government.
REHM: Mr. Taylor, I want to press you on a point that
Mr. Carver just made. He said that this Gelb issue is off the
mark, that it is somehow a little off the target of our conver-
sation. From your perspective, is that the case?
TAYLOR: I don't think so. I think the fact that Mr.
Gelb worked for the government at one point introduces an issue
that is not usually present. And I disagree with Mr. Carver on
how that issue should be resolved.
But, for example, when the Pentagon Papers were publish-
ed by the New York Times and other newspapers in 1971, that was a
classified study, Pentagon study of the Vietnam War, very
voluminous. And the government, the Nixon Administration said,
"This is all classified. It jeopardizes the national security.
You shouldn't publish it." And when The Times went ahead and
published it, they went to court to try and get the courts to
enjoin publication, and were ultimately unsuccessful in the
Supreme Court.
But the Pentagon Papers was a vast document. There were
some, perhaps, legitimate secrets in it that the newspapers
deliberately refrained from publishing. And I think that the
government's lawyers were completely unsuccessful in pointing to
anything that was published in the Pentagon Papers that really
jeopardized national security.
REHM: Stewart Taylor. He is a legislative correspon-
dent for the New York Times. Also here in the studio, George
Carver of Georgetown Center for Strategic and International
Studies....
Approved For Release 2010/01/08: CIA-RDP88-0107OR000301660004-0
 Approved For Release 2010/01/08: CIA-RDP88-0107OR000301660004-0
Mr. Carver, how did you feel about the CIA's recent
proposal for secrets legislation?
CARVER: Well, I haven't seen the text of the actual
proposal tabled. Mr. Taylor's sources and his access to leaks
are better than mine, since I retired from the government.
TAYLOR: I doubt it, George.
CARVER: But I feel that there is a problem that needs
addressed. Whether the particular approach embodied in that
suggested legislation was the right approach, I don't know, as I
say, having not seen it.
The situation the government is faced with now -- and I
caution that I'm not a lawyer. Mr. Taylor is. So if you have
legal questions, defer them to him. The government now, to
protect itself, must use two statutes, as I said, Section 793 and
794, Title 18 of the U.S. Code, the so-called espionage statutes,
which require willful or deliberate passage to a foreign power,
with intent to harm the United States.
Now, that's a standard of proof almost impossible to
sustain in a present court. And therefore there is almost
nothing that bars the door, unless you get into a communications
intelligence dimension, because that's covered by a separate
portion of the U.S. Code, Section 798. And there, unauthorized
disclosure alone is all that the government has to prove.
Now, I think that you need some tightening of present
legislation. How much is something that can be debated. But I
think that the thinness of the government's present arsenal for
defending itself and the people who elected it to defend them
does need strengthening. And I think that's where the debate
should be focused upon.
REHM: As I understand it, the CIA proposal would have
prosecuted government employees who leaked the information, but
not the reporters who published it. Is that correct, Mr. Taylor?
CARVER: It almost has to be that way, Diane. Because,
you see, drafting legislation that takes action against those who
publish the information in question gets you on very thin
constitutional ice because of the First Amendment. So if you
want to lock the barn door, you'd better lock it with the working
draft horses inside the stable, rather than trying to lock the
paddock fence.
TAYLOR: I must say, Mr. Carver, I would feel a little
Approved For Release 2010/01/08: CIA-RDP88-0107OR000301660004-0
 Approved For Release 2010/01/08: CIA-RDP88-0107OR000301660004-0
secure if the Justice Department interpreted the current legis-
lation the same way you do. In the case you mentioned earlier,
of the prosecution of Samuel Morison, the naval intelligence
analyst who is accused of providing classified intelligence
satellite photographs to a British military magazine, the Justice
Department has taken the position that the same espionage laws
Mr. Carver just discussed can be used to prosecute a government
employee who releases information, any classified information,
really, relating to the national defense, whether or not he
intended to harm the country, regardless of what his motive was,
and really almost regardless of whether there was any serious
damage that could realistically be expected to follow from the
publication. And so I think the interpretation of current law is
in dispute in that case.
Just two other brief points.
First, I agree with Mr. Carver that it's not easy for
the government to make criminal prosecutions of people the way
the law is now for leaking intelligence secrets to the press.
Howewver, that's not their only option. They can discipline
people. They can fire people. Most government workers value
their jobs and would not lightly put themselves in a position
where they would lose their jobs, be held in disgrace, never get
a positive reference to a future employer, and so forth.
If we're talking about spies, they're not going to worry
about that. If we're talking about spies, you can use the
espionage laws against them, even if they're narrowly interpret-
ed.
And finally, I think that while it's possible to imagine
a very carefully drafted law to try and get at people who
maliciously, if you will, leak legitimate secrets, the Admini-
stration has not drafted one yet. The one that the CIA came up
with would have provided for prosecution of virtually anyone who
leaked virtually any document stamped classified, as long as some
vague nexus could be established between that document and
national defense policies.
REHM: And what's happened to that proposal?
TAYLOR: That proposal has been dropped by the Admini-
stration. It's not quite clear how hard the CIA was pushing it.
It was originally forwarded to the Office of Management and
Budget under the signature of William Casey, the CIA Director.
And eventually various agencies, including the Justice Depart-
ment, the White House, got together and talked about it, and they
ended up deciding to drop it.
The apparent reason they dropped it was that they didn't
Approved For Release 2010/01/08: CIA-RDP88-0107OR000301660004-0
 Approved For Release 2010/01/08: CIA-RDP88-0107OR000301660004-0
think that this was the right time or that the CIA authorization
legislation, to which it was attached, was the right vehicle to
raise such a serious issue.
REHM: I want to pick up on one thing first, Mr. Carver,
and that is the fact that you, Mr. Taylor, did have access to
that document, which I gather there was some reluctance to give
out, not only to you, but to others.
TAYLOR: Yes. I obtained that document through channels
that ultimately involved a government employee or employees. It
was not a classified document, in the sense of being a document
that is stamped "Secret. This involves national security. Don't
publish it."
The Administration did not want it published at the time
because it was an internal memorandum that they were not yet
prepared to send out to the public. I think it's legitimate for
them to try and keep that sort of thing to themselves, if they
can. And I think it's legitimate for the press to try and bring
it to the public's attention, if we can.
CARVER: Well, again I remind you, Mr. Taylor had access
to the document. I didn't. But let's go back on a couple of
things before people call.
First, talking about Morison, let's understand what it
was that Morison did. Morison stole off of a colleague's desk
some highly sensitive satellite intelligence photographs, which
he then sent to a British publication. Now, if I stole off of
your desk some of your private correspondence that you did not
want out, and sent it to the New York Times, which then published
it, I would like to think that you had legal recourse against me,
because I would feel that I had done something that was uncon-
scienceable.
Now, I believe that holding Mr. Morison up as a great
civil libertarian champion and arguing that this is a civil
liberties case is a little bit wide of the mark, considering the
facts involved. I think the government should probably not have
prosecuted him under the espionage statute. They should probably
have prosecuted him for theft.
TAYLOR: They did. Both.
CARVER: Also, I think that we have touched on, in some
of our discussion, probably a much more useful avenue for the
government to follow than the path of legislation. I happen to
be skittish about the merits of legislation because courts tend
to interpret things in ways that the drafters never thought
about.
Approved For Release 2010/01/08: CIA-RDP88-0107OR000301660004-0
 Approved For Release 2010/01/08: CIA-RDP88-0107OR000301660004-0
I think that a great deal could be done with using the
concept that lies behind the CIA's secrecy agreement. And people
who have access to classified, legitimately classified informat-
ion -- and I remind you that it is really the function of those
who are elected and have to face the voters, and then the
subordinates whom they select at the top level, with the advice
and consent of the Senate, who really are empowered to make the
judgment calls about what is a secret and what is not, rather
than those who set themselves up with a typewriter or a micro-
phone.
But I think that pushing the notion of a secrecy
agreement and setting up, basically, a contractual situation
--there was a CIA officer named Frank Snepp, for example, who
published a book, and he was prosecuted, convicted, and it was
sustained by the Supreme Court. And the grounds on which the
Supreme Court sustained Snepp's conviction was that the secrecy
agreement was a contractual obligation, and he was in breach of
contract.
I think that is a much better avenue to -- better kind
of took or technique to use and a much better avenue to explore
than sweeping legislation.
REHM: Of course, there is that other question of when
and how you decide whether a whistle-blower has actually done a
service to the country, or has endangered that country's secur-
ity. And who is going to make those decisions?
TAYLOR: I'd like to respond briefly on the Morison
case, because I don't think anyone is seriously arguing that Mr.
Morison is a great civil libertarian. I should say that Mr.
Morison...
CARVER: Well, probably Tony Lewis is.
TAYLOR: I should say that Mr. Morison and his attorneys
have not -- he's pleaded innocent and he has not conceded that he
did the things the prosecution has said he did. So that issue is
still open.
But assuming that the prosecution can establish that,
and they have some evidence, I think that their position is that
Mr. Morison, in sending these photographs to the British military
magazine, did it for purposes of career advancement, that he was
not a whistle-blower.
However, I think there's an old adage that hard cases
make bad law. And there are a couple of things about the Morison
case that I think are troublesome.
First, the types of photographs that he sent to the
Approved For Release 2010/01/08: CIA-RDP88-0107OR000301660004-0
 Approved For Release 2010/01/08: CIA-RDP88-0107OR000301660004-0
British military magazine have been published openly by the
Pentagon time and time again as part of its annual booklet, of
various publicity efforts the Pentagon makes to show what kind of
airfields are being built in Nicaragua or Grenada or Cuba, or
things like that. And therefore I think it remains to be seen
whether the government can prove that there was anything that the
Russians would learn from a publication of those photographs they
didn't know already.
CARVER: Well now, I've got to pick you up on that one
right there.
REHM: Very briefly Mr. Carver, because I do want to
open the phones.
CARVER: Among the most legitimate secrets that the
government has are the capacities of its satellite cameras. And
without going into details that shouldn't be discussed in the
open air, the government is very careful that those satellite
photos which are published are adjusted, as it were, so that the
publication of them will mask the full range of capabilities of
the cameras that acquired them.
The photographs that Mr. Morison took off of his
colleague's desk had not been so adjusted. And therefore, even
though they show the same kinds of things that appeared in
Defense Department publications, the question about whether or
not they did damage is a much more complicated technical question
than many people who discuss it in the lay press would apparently
realize.
REHM: Let's open the phones.
WOMAN: I'd like to speak to your readers about a point
that has always bothered me. I lived abroad for a long time and
I've read a lot of foreign newspapers. And you'll see a lot of
information in foreign newspapers that are very reputable, like,
for example, the [unintelligible] Zeitung, Le Monde, where what
would be classified information over here is in the public domain
in other countries because their newspaper reporters have found
out all these things and have written them.
And for example, I'd just go back to some things like
CIA participation in the Hungarian revolution in 1966 [sic], and
things like the overthrow of the Iranian government before they
put in the Shah, and CIA participation in Pakistan.
REHM: Okay. So your point?
WOMAN: Well, the point I want to make is this: When a
piece of information that would be classified here -- for
Approved For Release 2010/01/08: CIA-RDP88-0107OR000301660004-0
 Approved For Release 2010/01/08: CIA-RDP88-0107OR000301660004-0
example, pertaining to Central America or something like that
--can you prosecuted if you're a government employee for saying
something about that when it's already in the public domain in
another country?
TAYLOR: I think the Justice Department's position is
that you can. However, the courts -- it remains to be seen
whether the courts will adopt that interpretation of the law.
It's not at all clear what the law is now. And that's one of the
problems in the Morison case. Civil libertarians are concerned
that, regardless of whether Mr. Morison is a good guy or not,
that case could create a precedent that could be used against
legitimate whistle-blowers exposing policy differences or
wrongdoing.
WOMAN: I'd like to ask you one more question.
REHM: Very briefly, please.
WOMAN: When the CIA or some government agency is
sponsoring publications like Encounter, or something like that,
you know, paying to set up a publicity effort or something like
that, and that's exposed, is that a prosecutable thing? I mean,
for example...
REHM: All right. Thanks for calling.
CARVER: Short answer, no. And the CIA has not engaged
in that kind of activity since the great flap about precisely
such things as Encounter that occurred in the mid-1960s.
And this, again, raises another problem. It is imposs-
ible for the U.S. Government to lend a quiet hand to its friends
overseas and protect their secrets and the fact of their cooper-
ation, it makes it extraordinarily difficult to get people that
you need to cooperate to help you, to continue to do so, because
they're not going to put their lives and their careers hostage to
your loose lips.
REHM: I wonder whether this whole question gets to the
classification process itself and whether it has become too broad
and whether that's how we need to approach this question -- that
is, using classification more deliberately and more carefully.
TAYLOR: I think that is one of the problems. And I
think it's acknowledged as a problem by people on all sides of
this issue.
Edwin Meese, the Attorney General, very recently said
Approved For Release 2010/01/08: CIA-RDP88-0107OR000301660004-0
 Approved For Release 2010/01/08: CIA-RDP88-0107OR000301660004-0
that he thought the classification stamp was applied far too
liberally. Supreme Court Justice Potter Stewart said in the
Pentagon Papers case that when everything is classified, nothing
is classified. What he meant by that is when bureaucrats abuse
the classification system by stamping "secret" all sorts of
things that shouldn't be secret, respect for the whole process
degenerates.
Now, notwithstanding Mr. Meese's statements, the one
concrete step that this Adminstration has taken to change the
classification system is, in various ways, to make it easier,
rather than harder, for govrnment officials, thousands of them,
to stamp documents "secret."
CARVER: But, Diane, you get into two problem areas
there. In the first place, classifying something is always a
judgment call. On any judgment call, other people can argue it.
But basically, those calls, I believe, have to be made by the
people who are responsible for making them and accountable within
the government for making them. And you can't set yourself up as
an external arbiter deciding whether or not those calls were
properly made if you're going to have classification at all.
Secondly, you've got to understand that some things that
may not seem to be classifiable in fact are very legitimately
classifiable.
No one think, for example, that a joke could possibly be
classified. But if a particular joke happened to have been told
by an irreplaceable source in a very small meeting in the Soviet
Union and it gets on the cocktail circuit and the source gets
shot, you've got a serious problem.
briefly.
REHM: So where do you think this issue is going? Very
CARVER: Well, I think it's going into the swamps of
discussion, unfortunately. But I'd like to see a clearer focus
on both sides, a recognition that there is a problem, and a joint
effort on the part of people outside and inside the government to
solve the problem, rather than taking absolutist positions on
either side of the case.
REHM: What do you think, Mr. Taylor?
TAYLOR: Very generally, I agree. I think the ultimate
issue is that how do you run an open society without giving away
all your secrets for free. One option would be to close the
society, to become more like the Russians in order to protect
ourselves from them. I don't think anyone wants to go too far
down that road. The hard question is how far.
REHM: ...Thank you, both, so much.
Approved For Release 2010/01/08: CIA-RDP88-0107OR000301660004-0