LETTER TO WILLIAM J. CASEY FROM DAVID F. DOHERTY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP88G01116R001001700002-1
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• Document Page Count: 25
• Document Creation Date: December 22, 2016
• Document Release Date: June 22, 2011
• Sequence Number: 2
• Publication Date: May 29, 1986
• Content Type: LETTER

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Wye Reg
29 May 1986
STAT
NOTE FOR: Director of Central Intelligence
FROM: David P. Doherty
General Counsel
Attached per your request are:
(1) Justice White's entire concurring opinion in the
Pentagon Papers case;
(2) Excerpts from the entire opinion which make
reference to 18 U.S.C. 798; and
(3) The relevant Committee report.
Please let me know if you need anything further.
David P. Doherty
Attachments
as stated
STAT
I- IC
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and sentences with-
Witherspoon. 222
). While the peti-
;his Court, the Ten-
11 to authorize the
e filing of bills of
,ime, for good cause
Supp. 1970). With
that sound judicial
the judgments be-
Tennessee Supreme
)pportunity to apply
see statute for leave
ns. In so doing we,
nerits of petitioners'
Df the new Tennessee
It is so ordered.
NEW YORK TIMES CO. v. UNITED STATES 713
NEW YORK TIMES CO. v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
No. 1873. Argued June 26, 1971-Decided June 30, 1971*
The United States, which brought these actions to enjoin publication
in the New York Times and in the Washington Post of certain
classified material, has not met the "heavy burden of showing
justification for the enforcement of such a [prior] restraint."
No. 1873, 444 F. 2d 544, reversed and remanded; No. 1885, -
U. S. App. D. C. -, 446 F. 2d 1327, afirmed.
Alexander M. Bickel argued the cause for petitioner in
No. 1873. With him on the brief were William E.
Hegarty and Lawrence J. McKay.
Solicitor General Gi iswold argued the cause for t1W
United States in both cases. With him on the brief were
Assistant Attorney General Mardian and Daniel M.
Friedman.
William R. Glendon argued the cause for respondents
in No. 1885. With him on the brief were Roger A. Clark,
Anthony F. Essaye, Leo P. Larkin, Jr., and Stanley
Godo f sky.
Briefs of amici curiae were filed by Bob Eckhardt and
Thomas I. Emerson for Twenty-Seven Members of Con-
gress; by Norman Dorsen, Melvin L. Wulf, Burt Neu-
borne, Bruce J. Ennis, Osmond K. Fraenkel, and Marvin
M. Karpatkin for the American Civil Liberties Union;
and by Victor Rabinowitz for the National Emergency
Civil Liberties Committee.
'Together with No. 1885, United States v. Washington Post Co.
et al., on certiorari to the United States Court of Appeals for the
District of Columbia Circuit.
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730 OCTOBER TERM, 1970
WHITE, J., concurring 403 U. S.
the confidentiality necessary to carry out its responsibili-
ties in the fields of international relations and national
defense.
This is not to say that Congress and the courts have
no role to play. Undoubtedly Congress has the power to
enact specific and appropriate criminal laws to protect
government property and preserve government secrets.
Congress has passed such laws, and several of them are
of very colorable relevance to the apparent circum-
stances of these cases. And if a criminal prosecution is
instituted, it will be the responsibility of the courts to
decide the applicability of the criminal law under which
the charge is brought. Moreover, if Congress should
pass a specific law authorizing civil proceedings in this
field, the courts would likewise have the duty to decide
the constitutionality of such a law as well as its appli-
cability to the facts proved.
But in the cases before us we are asked neither to con-
strue specific regulations nor .to apply specific laws. We
are asked, instead, to perform a function that the Con-
stitution gave to the Executive, not the Judiciary. We
are asked, quite simply, to prevent the publication by
two newspapers of material that the Executive Branch
insists should not, in the national interest, be published.
I am convinced that the Executive is correct with re-
spect to some of the documents involved. But I can-
not say that disclosure of any of them will sprely result
in direct, immediate, and irreparable damage to our
Nation or its people. That being so, there can under
the First Amendment be but one judicial resolution of
the issues before us. I join the judgments of the Court.
MR. JUSTICE WHITE, With Whom MR. JUSTICE STEWART
joins, concurring.
I concur in today's judgments, but only because of the
concededly extraordinary protection against prior re-
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out its responsibili-
ations and national
i.nd the courts have
ess has the power to
icnal laws to protect
government secrets.
several of them are
s apparent circum-
ninal prosecution is
ity of the courts to
ial law under which
if Congress should
proceedings in this
the duty to decide
is well as its appli-
sked-neither to con-
specific laws. We
,tion that the Con-
the Judiciary. We
the publication by
j-Executive Branch
serest, be published.
is correct with re-
'olved. But I can-
m will surely result
)le damage to our
;o, there can under
idicial resolution of
ments of the Court.
only because of the
against prior re-
straints enjoyed by the press under our constitutional
system. I do not say that in no circumstances would
the First Amendment permit an injunction against pub-
lishing information about government plans or opera-
tions.' Nor, after examining the materials the Govern-
ment characterizes as the most sensitive and destructive,
can I deny that revelation of these documents will do
substantial damage to public interests. Indeed, I am
confident that their disclosure will have that result. But
I nevertheless agree that the United States has not satis-
fied the very heavy burden that it must meet to warrant
an injunction against publication in these cases, at least
in the absence of express and appropriately limited con-
gressional authorization for prior restraints in circum-
stances such as these.
4
1 The Congress has authorized a strain of prior restraints against
private parties in certain instances. The National Labor Relations
Board routinely issues cease-and-desist orders against employers
who it finds have threatened or coerced employees in the exercise
of protected rights. See 29 U. S. C. ? 160 (c). Similarly, the
Federal Trade Cofnmission is empowered to impose cease-and-desist
orders against unfair methods of competition. 15 U. S. C. ? 45 (b).
Such orders can, and quite often do, restrict what may be spoken
or written under certain circumstances. See, e. g., NLRB v.
Gissel Packing Co., 395 U. S. 575, 616-620 (1969). Article I, ? 8, of
the Constitution authorizes Congress to secure, the "exclusive right"
of authors to their writings, and no one deniest that a newspaper
can properly be enjoined from publishing the copyrighted works
of another. See Westermann Co. v. Dispatch Co., 249 U. S. 100
(1919). Newspapers do themselves rely from time to time on the
copyright as a means of protecting their accounts of important
events. However, those enjoined under the statutes relating to
the National Labor Relations Board and the Federal Trade Com-
mission are private parties, not the press; and when the press
is enjoined under the copyright laws the complainant is a private
copyright holder enforcing a private right. These situations are
quite distinct from the Government's request for an injunction
against publishing information about the affairs of government, a
request admittedly not based on any statute.
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 I
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732 OCTOBER TERM, 1970
Wxrrz, J., concurring 403 U. S.
The Government's position is simply stated: The re-
sponsibility of the Executive for the conduct of the foreign
affairs and for the security of the Nation is so basic that
the President is entitled to an injunction against publi-
cation of a newspaper story whenever he can convince a
court that the information to be revealed threatens "grave
and irreparable" injury to the public interest;' and the
injunction should issue whether or not the material to
be published is classified, whether or not publication
would be lawful under relevant criminal statutes enacted
by Congress, and regardless of the circumstances by which
the newspaper came into possession of the information.
At least in the absence of legislation by Congress, based
on its own investigations and findings, I am quite unable
to agree that the inherent powers of the Executive and
the courts reach so far as tq authorize remedies having
such sweeping potential for inhibiting publications by the
press. Much of the difficulty inheres in the "grave and
irreparable danger" standard suggested by the United
States. If the United States were to have judgment
under such a standard in these cases, our decision would
be of little guidance to other courts in other cases, for
the material at issue here would not be available from
the Court's opinion or from public records, nor would it
be published by the press. Indeed, even today where
we hold that the United States has not met its burden,
the material remains sealed in court records and it is
2 The "grave and irreparable danger" standard is that asserted by
the Government in this Court. In remanding to Judge Gurfein for
further hearings in the Times litigation, five members of the Court
of Appeals for the Second Circuit directed him to determine whether
disclosure of certain items specified with particularity by the Gov-
ernment would "pose such grave and immediate danger to the
security of the United States as to warrant their publication being
enjoined."
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ply stated : The re-
3nduct of the foreign
tion is so basic that
ction against publi-
r he can convince a
led threatens "grave
interest; 2 and the
not the material to
or not publication
rial statutes enacted
umstances by which
of the information.
i by Congress, based
s, I am quite unable
the Executive and
ze remedies having
publications by the
s in the "grave and
.ed by the United
to have judgment
our decision would
in other cases, for
be available from
!bords, nor would it
even today where
riot met its burden,
t records and it is
lard is that asserted by
g to Judge Gurfein for
members of the Court
n to determine whether
'ticularity by the Gov-
iediate danger to the
their publication being
713 WHITE, J., concurring
properly not discussed in today's opinions. Moreover,
because the material poses substantial dangers to national
interests and because of the hazards of criminal sanctions,
a responsible press may choose never to publish the more
sensitive materials. To sustain the Government in these
cases would start the courts down a long and hazardous
road that I am not willing to travel, at least without
congressional guidance and direction.
It is not easy to reject the proposition urged by the
United States and to deny relief on its good-faith claims
in these cases that publication will work serious damage
to the country. But that discomfiture is considerably
dispelled by the infrequency of prior-restraint cases.
Normally, publication will occur and the damage be
done before the Government has either opportunity or
grounds for suppression. So here, publication has ala
ready begun and a substantial part of the threatened
damage has already occurred. The fact of a massive
breakdown in security is known, access to the documents
by many unauthorized people is undeniable, and the
efficacy of equitable relief against these or other news-
papers to avert anticipated damage is doubtful at best.
What is more, terminating the ban on publication of
the relatively few sensitive 'documents the Govern-
ment now seeks to suppress does not mean that the law
either requires or invites newspapers or others to publish
them or that they will be ininiune from criminal action
if they do. Prior restraints require an unusually heavy
justification under the First Amendment; but failure by
the Government to justify prior restraints does not meas-
ure its constitutional entitlement to a conviction for
criminal publication. That the Government mistakenly
chose to proceed by injunction does not mean that it
could not successfully proceed in another way.
When the Espionage Act was under consideration in
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734 OCTOBER TERM, 1970
Wxrrs, J., concurring 403 U. S.
1917, Congress eliminated from the bill a provision that
would have given the President broad powers in time
of war to proscribe, under threat of criminal penalty, the
publication of various categories of information related
to the national defense.' Congress at that time was un-
willing to clothe the President with such far-reaching
powers to monitor the press, and those opposed to this
part of the legislation assumed that a necessary con-
comitant of such power was the power to "filter out the
news to the people through some man." 55 Cong. Rec.
2008 (remarks of Sen. Ashurst). However, these same
members of Congress appeared to have little doubt that
newspapers would be subject to criminal prosecution
if they insisted on publishing information of the type
Congress had itself determined should not be revealed.
Senator Ashurst, for example, was quite sure that the J
editor of such a newspaper "should be punished if he 4
did publish information as to the movements of the
fleet, the troops, the aircraft, the location of powder
factories, the location of defense works, and all that sort
of thing." Id., at 2009.'
3 "Whoever, in'time of war, in violation of reasonable regulation,
to be prescribed by the President, which he is hereby authorized
to make and promulgate, shall publish any information with respect
to the movement, numbers, description, condition, or disposition of
any of the armed forces, ships, aircraft, or war materials of the
United States, or with respect to the plans or conduct of any naval
or military operations, or with respect to any works or measures
undertaken for or connected with, or intended for the fortification
or_defense of any place, or any other information relating to the
public defense calculated to be useful to the enemy, shall be punished
by a fine . . . or by imprisonment . . . ." 55 Cong. Rec. 2100.
* Senator Ashurst also urged that " `freedom of the press' means
freedom from the restraints of a censor, means the absolute liberty
and right. to publish whatever you wish; but you take your
chances of punishment in the courts of your country for the violation
of the laws of libel, slander, and treason." 55 Cong. Rec. 2005.
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ill a provision that
id powers in time
aminal penalty, the
aformation related
that time was un-
such far-reaching
se opposed to this
a necessary con-
r to "filter out the
i." 55 Cong. Rec.
wever, these same
e little doubt that
urinal prosecution
ation of the type
I not be revealed.
Cite sure that the
)e. punished if he
~tivements of the
cation of powder
, and all that sort
k
reasonable regulations
is hereby authorized
)rmation with respect
ion, or disposition of
-var materials of the
conduct of any naval
works or measures
for the fortification
ation relating to the
my, shall be punished
Cong. Ree. 21(X).
of the press' means
the absolute liberty
but you take your
ntry for the violation
Cong. Ree. 2(X)5.
NEW YORK TIMES CO. v. UNITED STATES 735
713 WHITE, J., concurring
The Criminal Code contains numerous provisions po-
tentially relevant to these cases. Section 797 s makes it
a crime to publish certain photographs or drawings of
military installations. Section 798,8 also in precise lan-
guage, proscribes knowing and willful publication of any
classified information concerning the cryptographic sys-
Title 1S U. S. C. ? 797 provides:
"On and after thirty days from the date upon which the President
defines any vital military or naval installation or equipment as
being within the category contemplated under section 795 of this
title, whoever reproduces, publishes, sells, or gives away any photo-
graph, sketch, picture, drawing, map, or graphical representation
of the vital military or naval installations or equipment so defined,
without first obtaining permi,sion of the commanding officer of the
military or naval post, camp, or station concerned, or higher author-4
ity, unless such photograph, sketch, picture, drawing, map, or
graphical representation has clearly indicated thereon that it has
been censored by the proper military or naval authority, shall be
fined not more than $1,000 or imprisoned not more than one year,
or both."
In relevant part"18 U. S. C. ? 798 provides:
"(a) Whoever' knowingly and willfully communicates, furnishes,
transmits, or otherwise makes available to an unauthorized person,
or publishes, or uses in any manner prejudicial to the safety or inter-
est of the United States or for the benefit of any foreign government
to the detriment of the United States any claSsiqed information-
"(1) concerning the nature, preparation, or use of any code,
cipher, or cryptographic system of the United States or any foreign
government ; or
"(2) concerning the design, construction, use, maintenance, or
repair of any device, apparatus, or appliance used or prepared or
planned for use by the United States or any foreign government
for cryptographic or communication intelligence purposes: or
"(3) concerning the communication intelligence activities of the
United States or any foreign government; or
"(4) obtained by the process of communication intelligence from
the communications of any foreign government, knowing the same
to have been obtained by such processes-
"Stall be fined not more than $10,(XX) or imprisoned not more
than ten years, or hot h."
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736 OCTOBER TERM, 1970
WHrrE, J., concurring 403 U. S.
tems or communication intelligence activities of the
United States as well as any information obtained from
communication intelligence operations.' If any of the
material here at issue is of this nature, the newspapers
are presumably now on full notice of the position of the
United States and must face the consequences if they
The purport of 18 U. S. C. ? 798 is clear. Both the House and
Senate Reports on the bill, in identical terms, speak of furthering
the security of the United States by preventing disclosure of in-
formation concerning the cryptographic systems and the communi-
cation intelligence systems of the United States, and explaining that
"[t]his bill makes it a crime to reveal the methods, techniques, and
materiel used in the transmission by this Nation of enciphered or
coded messages. . . . Further, it makes it a crime to reveal methods
used by this Nation in breaking the secret codes of a foreign nation.
It also prohibits under certain penalties the divulging of any infor-
mation which may have come into this Government's hands as a
result of such a code-breaking." H. R. Rep. No. 1895, 81st Cong.,
2d Sess., 1 (1950). The narrow reach of the statute was explained
as covering "only a small category of classified matter, a category
which is both vital and vulnerable to an almost unique degree."
Id., at 2. Existing legislation was deemed inadequate.
"At present two other acts protect this information, but only in
a limited way. These are the Espionage Act of 1917 (40 Stat. 217)
and the act of June 10, 1933 (48 Stat. 122). Under the first,
unauthorized revelation of information of this kind can be penalized
only if it can be proved that the person making the revelation did
so with an intent to injure the United States. Under the second,
only diplomatic codes and messages transmitted in diplomatic codes
are protected. The present bill is designed to protect against
knowing and willful publication or any other revelation of all
important information affecting the United States communication
intelligence operations and all direct information about all United
States codes and ciphers." Ibid.
Section 798 obviously was intended to cover publications by non-
employees of the Government and to ease the Government's burden
in obtaining convictions. See H. R. Rep. No. 1895, supra, at
2-5. The identical Senate Report, not cited in parallel in the text
of this footnote, is S. Rep. No. 111, 81st Cong., 1st Sess. (1949).
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NEW YORK TIMES CO. v. UNITED STATES 737
activities of the
)n obtained from
If any of the
the newspapers
ne position of the
equences if they
Both the House and
speak of furthering
mg disclosure of in-
s and the communi-
, and explaining that
nods, techniques, and
ion of enciphered or
me to reveal methods
s of a foreign nation.
vulging of any infor-
rnment's hands as a
r'o. 1895, 81st Cong.,
tatutee was explained
matter, a category
host unique degree."
idequate.
rmation, but only in
1917 (40 Stat. 217)
Under the first,
nd can be penalized
ng the revelation did
. Under the second,
:1 in diplomatic codes
to protect against
per revelation of all
tat es communication
ion about all United
publications by non-
Government's burden
No. 1895, supra, at
n parallel in the text
,., 1st Secs. (1949).
713 WHrrE, J., concurring
publish. I would have no difficulty in sustaining con-
victions under these sections on facts that would not
justify the intervention of equity and the imposition of
a prior restraint.
The same would be true under those sections of the
Criminal Code casting a wider net to protect the national
defense. Section 793 (e) ' makes it a criminal act for
any unauthorized possessor of a document "relating to
the national defense" either (1) willfully to communicate
or cause to be communicated that document to any per-
son not entitled to receive it or (2) willfully to retain
the document and fail to deliver it to an officer of the
United States entitled to receive it. The subsection was
added in 1950 because pre-existing law provided no
Z
e Section 793 (e) of 18 U. S. C. provides that:
"(e) Whoever having unauthorized possession of, access to, or
control over any document, writing, code book, signal book, sketch,
photograph, photographic negative, blueprint, plan, map, model,
instrument, appliance, or note relating to the national defense, or
information relatint to the national defense which information the
possessor has reason to believe could be used to the injury of the
United States or to the advantage of any foreign nation, willfully
communicates, delivers, transmits or causes to be communicated,
delivered, or transmitted, or attempts to communicate, deliver, trans-
mit or cause to be communicated, delivered, or transmitted the same
to any person not entitled to receive it, or willfull 1 retains the same
and fails to deliver it to the officer or employee, of the United
States entitled to receive it;"
is guilty of an offense punishable by 10 years in prison, a $10,000
fine, or both. It should also be noted that 18 U. S. C. ? 793 (g),
added in 1950 (see 64 Stat. 1004; S. Rep. No. 2369, pt. 1, 81st
Cong., 2d Sess., 9 (1950)), provides that "[i] f two or more persons
conspire to violate any of the foregoing provisions of this section,
and one or more of such persons do any act to effect the object
of the conspiracy, each of the parties to such conspiracy shall
be subject to the punishment provided for the offense which is
the object of such conspiracy."
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738 OCTOBER TERM, 1970
Wnrrz, J., concurring 403 U. S.
penalty for the unauthorized possessor unless demand
for the documents was made." "The dangers surround-
ing the unauthorized possession of such items are self-
"The amendment of ? 793 that added subsection (e) was part of
the Subversive Activities Control Act of 1950, which was in turn
Title I of the Internal Security Act of 1950. See 64 Stat. 987.
The report of the Senate Judiciary Committee best explains the
purposes of the amendment:
"Section 18 of the bill amends section 793 of title 18 of the
United States Code (espionage statute). The several paragraphs
of section 793 of title 18 are designated as subsections (a) through
"(1) Amends the fourth paragraph of section 793, title 18 (subsec.
M), to cover the unlawful dissemination of `information relating
to the national defense which information the possessor has reason
to believe could be used to the injury of the United States or to
the advantage of any foreign nation.' The phrase `which informa-
tion the possessor has reason to believe could be used to the injury
of the United States or to the advantage of any foreign nation'
would modify only `information relating to the national defense'
and not the other items enumerated in the subsection. The fourth
paragraph of section 793 is also amended to provide that only those
with lawful possession of the items relating to national defense
enumerated therein may retain them subject to demand therefor.
Those who have unauthorized possession of such items are treated
"(2) Amends section 793, title 18 (subsec. (e)), to provide that
unauthorized possessors of items enumerated in paragraph! 4 of
section 793 must surrender possession thereof to the proper author-
ities without demand. Existing law provides no penalty for the
unauthorized possession of such items unless a demand for them
is made by the person entitled to receive them. The dangers
surrounding the unauthorized possession of such items are self-
evident, and it is deemed advisable to require their surrender in
such a case, regardless of demand, especially since their unauthorized
possession may be unknown to the authorities who would otherwise
make the demand. The only difference between subsection (d) and
subsection (e) of section 793 is that a demand by the person entitled
to receive the items would be a necessary element of an offense
under subsection (d) where the possession is lawful, whereas such
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tcring 403 U. S.
assessor unless demand
The dangers surround-
of such items are self-
Imbsection (e) was part of
if 1950, which was in turn
1950. See 64 Stat. 987.
imittee best explains the
m 793 of title 18 of the
. The several paragraphs
as subsections (a) through
The significant changes
tie 18 are as follows:
action 793, title 18 (subsec.
n of `information relating
i the possessor has reason
f the United States or to
i.e phrase `which informa-
)uld be used to the injury
to of -dny foreign nation'
to the national defense'
t subsection. The fourth
o provide that only those
.ting to national defense
ecto demand therefor.
s", ch items are treated
ec. (e)), to provide that
ited in paragraph 4 of
of to the proper author-
ides no penalty for the
ess a demand for them
ive them. The dangers
of such items are self-
quire their surrender in
since their unauthorized
ies who would otherwise
ween subsection (d) and
)d by the person entitled
element of an offense
is lawful, whereas such
NEW YORK TIMES CO. v. UNITED STATES 739
WHITE, J., concurring
evident, and it is deemed advisable to require their sur-
render in such a case, regardless of demand, especially
since their unauthorized possession may be unknown to
the authorities who would otherwise make the demand."
S. Rep. No. 2369, pt. 1, 81st Cong., 2d Sess., 9 (1950).
Of course, in the cases before us, the unpublished docu-
ments have been demanded by the United States and
their import has been made known at least to counsel for
the newspapers involved. In Gorin v. United States,
312 U. S. 19, 28 (1941), the words "national defense"
as used in a predecessor of ? 793'were held by a unani-
mous Court to have "a well understood connotation"-
a "generic concept of broad connotations, referring to
the military and naval establishments and the related
activities of national preparedness"-and to be "suffi-
ciently definite to apprise the public of prohibited actiti-
a demand would not be a necessary element of an offense under sub-
section (e) where the possession is unauthorized." S. Rep. No.1
2369, pt. 1, 81st Cong., 2d Sess., 8-9 (1950) (emphasis added).
It seems clear from the foregoing, contrary to the intimations
of the District `Court for the Southern District of New York in
this case, that in prosecuting for communicating or withholding a
"document" as contrasted with similar action with respect to "infor-
mation" the Government need not prove an intent to injure the
United States or to benefit a foreign nation but only willful and
knowing conduct. The District Court relied ion Conn v. United
States, 312 U. S. 19 (1941). But. that case arose under other
parts of the predecessor to ? 793, see 312 U. ~., at 21-22-parts
that imposed different intent standards not repeated in ? 793 (d)
or ? 793 (e). Cf. 18 U. S. C. ?? 793 (a), (b), and (c). Also,
from the face of subsection (e) and from the context of the Act of
which it was a part, it seems undeniable that, a newspaper, as well
as others unconnected with the Government, are vulnerable to
prosecution under ? 793 (e) if they communicate or withhold the
materials covered by that section. The District Court ruled that
"communication" did not reach publication by a newspaper of
documents relating to the national defense. I intimate no views
on the correctness of that conclusion. But neither communication
nor publication is necessary to violate the subsection.
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OCTOBER TERM, 1970
MARSHALL, J., concurring 403 U. S.
ties" and to be consonant with due process. 312 U. S.,
at 28. Also, as construed by the Court in Gorin, infor-
mation "connected with the national defense" is obvi-
ously not limited to that threatening "grave and irrep-
arable" injury to the United States.'?
It is thus clear that Congress has addressed itself to
the problems of protecting the security of the country
and the national defense from unauthorized disclosure
of potentially damaging information. Cf. Youngstown
Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 585-586
(1952) ; see also id., at 593-628 (Frankfurter, J., con-
curring). It has not, however, authorized the injunc-
tive remedy against threatened publication. It has ap-
parently been satisfied to rely on criminal sanctions and
their deterrent effect on the responsible as well as the
irresponsible press. I am not, of course, saying that
either of these newspapers has yet committed a crime
or that either would commit a crime if it published
all the material now in its possession. That matter
must await resolution in the context of a criminal pro-
ceeding if one is instituted by the United States. Ii
that event, the issue of guilt or innocence would be
determined by procedures and standards quite different
from those that have purported to govern these injunc-
tive proceedings.
MR. JUSTICE MARSHALL, concurring.
The Government contends that thelonly issue in these
cases is whether in a suit by the United States, "the
First Amendment bars a court from prohibiting a news-
10 Also relevant is 18 U. S. C. ? 794. Subsection (b) thereof
forbids in time of war the collection or publication, with intent
that it shall be communicated to the enemy, of any information with
respect to the movements of military forces, "or with respect to
the plans or conduct . . . of any naval or military operations .. .
or any other information relating to the public defense, which might
be useful to the enemy . . .."
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the uniformed services who wen hoopitel patients on the dote of enact-
ment had the right to elect retirement benefits .computed in accordance
with laws in existence prior to the Career Compensation Act, if such
members were retired for physical ?lisabiliity during the 6 months im-
mediately following the date of enactment.. -
Due to the fact that regulations required by other sections of title IV
of the Career Compensation Act were.. not promulgated until after the
6-month period had expired, particularly insofar as they pertain to the
payment of retired pay to non-Regular personnel, such persons were not
able to exercise their election prior to the expiration date,
The proposed legislation, therefore, would extend the election date to
December 31, 1950, but would not create any other new rights or bene-
fits and. in all probability, will not enlarge the number of personnel
entitled to the right of election.
While the exact number of persons affected by the proposed legisla-
tion is not known, the Department of Defense has indicated that there
are approximately 200 individuals who may be adversely affected by
failure to extend the election period for the proposed additional 6 months.
Thus early enactment of the proposed legislation will enable the De-
partments to retire certain personnel with an election which was original-
ly contemplated under the Career Compensation Act.
Pending enactment of the proposed legislation, many personnel are
being continued on full pay and, as a result, early enactment of the
proposed legislation will undoubtedly result in a saving to the Govern-
ment.
The Committee on Armed Services has been advised by the Depart-
ment of Defense that it favors the proposed legislation, and it has like-
wise been advised that the Bureau of the Budget has been consulted and
offers no objection to the proposed legislation.
CRYPTOGRAPHIC SYSTEMS AND COMMUNICATION
INTELLIGENCE ACTIVITIES-PREVENTION OF
DISCLOSURE OF INFORMATION
For feet of Act see p. 159
Senate Report No. III, Mar. 1I, 1949 [To accompany S. 277]
House Report No. 1895, Apr. 6, 1950 [To accompany S. 277]
The House Report repeats in substance the Senate Report.
House Report No. 1895
V E Committee on the Judiciary, to whom was referred the bill
S. 277) to enhance further the security.of the United States by pre-
venting disclosures of information concerning the cryptographic systems
and the communication intelligence activities of the United States, having
297
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 LEGISLATIVE i?BTORY
considered the tame, reports favorably thereon without amendment
and recommends that the bill do pass.
PURPOSE OF THE BILL
The purpose of this bill is to prevent the reveletion of Impotent
information about the United States aomnwnicafion intelligence ectivi-
ties and United States codes and ciphers by psn-mis who d sclose such
information without proper authority, and to prescribe penalties to
those knowingly and willfully revealing such information.
GENERAL INFORMATION
This -bill males-if a crime o reveal the methods, echniques,- and
materiel used in the transmission by this Nation of enciphered or coded
messages. It does not control in any way the free dissemination of in-
formation which might be transmitted by code or cipher. Further, it
makes it a crime to reveal methods used by this Nation in breaking the
secret codes of a foreign, nation. It also prohibits under certain penalties
the divulging of any information which may have come into this Govern-
ment's hands as a result of such a code-breaking. The reason for the
latter prohibition is to prevent the indication to a foreign nation that
we may have broken their code system.
At present two other acts protect this information, but only in a lim-
ited way. These are the 1ESpionege Act of 1917 (40 Stet. 217) and the
act of June 10, 1933 (48 Stat. 122). Under the first, i isuthorized revela-
tion of information of this kind can be penalized only if it can be proved
that the person making the revelation did so with an intent to injure the
United States. Under the second, only diplomatic codes and messages
transmitted in diplomatic codes are protected. The present bill is design-
ed to protect against knowing and willful publication or any other revela-
,tion of all important information affecting United States communication
intelligence operations and all direct information about all United States
codes and ciphers.
As the matter now stands, prevention of the disclosure of informa-
tion of our cryptographic systems, exclusive of State Department codes,
and of communication intelligence activities rests solely on the dis-
cretion, loyalty, and good judgment of numerous individuals. During
the recent war there were many persons who acquired some information
covered by this bill in the course of their duties. Most of these individ-
uals are no longer connected with the services and are not now pro-
hibited from making disclosures which can be most damaging to the
security of the United States. They are subject to the temptations of
personal gain and of publicity in making sensational disclosures of the
personal information within the purview of this act.
The purpose of the bill is well summarized in the quotation from the
Joint Congressional Committee for the Investigation of the Attack on
pearl Harbor, which' recommended, on page 253 of she report, that-
2298
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? ? ? TM at s be e n to insure that statutory o r other r e -
Ininki-
s - pj (ja ' tb security
Md" * ,Oes+pies abeW iise onto" study
T J&, ba M an attempt to provide just such legislation for only a anal
category of dlstified natter, a category which is both vital and vulnerable
:io an s n ost utniqua ogme.
Earlier versions of this same bill (S. 805, 79th Cong.; S. 1019, 80th
Cong.; and S. 2680, 80th Cong.) would have penalized the revelation
or publication, not only of direct information about United States codes
and ciphers themselves but of information transmitted in United States
codes and ciphers: This ~rovis+onis n t included in-the-present version.
Under the bill as now drafted there is no penalty for publishing the con-
tents of United States Government communications (except, of course,
those which reveal information in the categories directly protected by
the bill itself). Even the texts of coded Government messages can be
published without penalty as far as this bill is concerned, whether re-
leased for such publication by due authority of a Government department
or passed out without authority or against orders by personnel of a
department. In the latter case, of course, the Government personnel
involved might be subject to punishment by administrative action but not,
it is noted, under the provisions of this bill.
The bill, while carefully avoiding the infringement of civil liberties,
extends the protected field covered by the extremely narrow act of June
10, 1933 (48 Stat. 122), the latter being of far too limited application
to afford to certain highly secret Government activities the protection
which they need. The need for protection of this sort is best illustrated
,,by an account of the very circumstances which surrounded the enact-
ment of the act of June 10, 1933. In 1931 there had been published in
the United States a book which gave a detailed account of United States
successes in breaking Japanese diplomatic codes during the decade
prior to publication. In 1933 it was learned that the same author had
already placed in the hands of his publishers the manuscript of another
book which made further detailed revelations of United States success in
the breaking of foreign diplomatic codes. Immediate action secured the
passage by the Congress of the measure of June 10, which effectively
stopped publication of the second book. Unfortunately, the first book
had done, and continued to do, irreparable harm. It had caused a
furor in Japanese Government circles, and Japanese diplomatic codes
had been changed shortly after its appearance. The new codes were
more complex and difficult to solve than the old ones, and throughout
the years from then until World War II not only the Japanese diplomatic
cryptographers but the military and naval cryptographers as well were
obviously devoting more study to cryptography than they ever had
before. In 1934 they introduced their first diplomatic machine cipher.
2299
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Year by year, their codes and ciphers improved progressively by radical
steps, and United States cryptanalysts had more and more difficulty and
required more and more time to break them. , l can be acid Hnt United
iabirily to dlcode The important Japinw aailit.r con+muniu-
tions in The days immedatriy Isadmg up to Trarl Haibo'_ was Arrctly
ucr bablle to 46 stet, of code-.ecutffy consuoutness which 46 nwela-
?ions of a decade earlier had forced on Japanese officialdom.
ANALYSIS OF THE BILL
The bill would make it a crime, punishable by not more than $10,000
fine, or 10 years' imprisonment, or both, to knowingly and willfully reveal
two categories of information, namely; (I) information which would
nullify the efforts of United States communication intelligence agencies,
and (2) information which would permit fore9n governmentsto read the
secret official communications of the United States. Information of the
first category is covered by the following phrases (qualifying "informa-
tion"):
? ' ? concerning the nature, preparation, or use of any code, cipher,
or cryptographic system of ? ? ? any foreign government.
? ? ? concerning the design, construction, use, maintenance, or re-
pair of any device, apparatus, or appliance used or prepared or planned
for use by ? ? ? any foreign government.
? ? ? concerning the communication intelligence activities of the
united States or any foreign government.
? ? ? obtained by the processes of communication intelligence from
the communications of any foreign government.
Information of the second category is covered by inclusion of the
words, "the United States or" in the first, second, and third of the phras-
es quoted above. The bill does not prohibit the publication or dis-
closure of United States Government messages in general.
In addition, it should be noted that the restrictions on disclosure apply
only to the types of classified information defined in the phrases quoted
above. The bill specifies that the classification must be in fact in the
interests of national security.
RECOMMENDATIONS OF THE DEPARTMENTS
There are printed below, letters from the Secretary of Defense and
from the Acting Secretary of the Navy to the Speaker of the House of
Representatives recommending the enactment of this legislation:
THE SECRETARY OF DEFENSE,
Washington, December 81, 1948.
The honorable the SPEAKER OF THE HOUSE OF REPRESENTATIVES,
Washington, D. C.
DEAR MR. SPEAKER: Attached is a letter addressed to you by the Act-
ing Secretary of the Navy recommending the enactment of a proposed
draft of legislation, also attached, bearing the title "to enhance further
the security of the United States by preventing disclosures of information
concerning the cryptographic systems and the communication intelligence
activities of the United States."
2300
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This legislation has been approved by as for inclusion in the National
Military Establishment legislative program for the Eighty-first Congress,
first session, and responsibility for handling it on behalf of the Establish-
ment has been placed in the Department of the Navy.
Sincerely yours,
NAVT DEPARTYF.NT,
Washington, December 13, 1948.
The honorable the SPEAKER OF THE HOUSE OF REPRESE1cTATIVES.
Washington, D. C.
DEAR MR. SPEAKER: There is transmitted herewith a draft of a pro-
posed bill "to enhance further the security of the United States by pre-
venting disclosures of information concerning the cryptographic systems
and the communication intelligence activities of the United States."
The purpose SC the proposed bill 1 to insure further the military
security of the '1ltdted States by providing that the upauthorlsed dis-
UAted States shall be $ ufatiwl offense. - - - --- -- .~~
During the war it was necessary to make a great many matters of a
confidential nature accessible to a considerable number of service per-
sonnel and employees who have since been severed from their wartime
duties and who may fail to safeguard official :information which I. within
their knowledge. Existing laws do not adequately protect the security
of information of this character and it Is considered of utmost urgency
and importance from the standpoint of national security that legislation
be enacted which -,Will fully protect the security of classified matter.
The Joint Congressional Committee for the Investigation of the Attack
on Pearl Harbor recognized this fact and in its report recommended that
Congress give serious study, among other things, "to legislation fully
protecting the security of classified matter" (p. 253).
.Toe propose 4ft the combined views of the Army. Navy,
r FoTde. ei' Agency. and the Department of State,
lh to as i iiry to prgvent the unauthorised dis-
cl titre rd
Ion The Navy Vegar t Is spon
-
aor3ng tWs the foregoing organizations.
The proposed bill Is identical with . 2680 80th Cong., 2d seas.) as
reported from the Armed Services Comm e
rlier versions of the proposed legislatio (8. 80 , 79th Cong. and S.
19, 0th Cong.) would have penalized th on or publication
ly of direct information about United States codes and ciphers
themselves but of information transmitted in United States codes and
ciphers. This provision is not Included in the present version.
The proposed bill extends the protected field covered by the extremely
narrow act of June 10, 1933 (48 Stat. 122, 22 U. S. C. 815), which act
is of far too limited application to afford to certain highly secret Gov-
ernment activities the protection which they need. The proposed legis-
lation does not in any way control the free dissemination of information
which might be transmitted by code or cipher unless the information
has been obtained by clandestine interception and cryptanalysis.
At present, there are two acts affording limited protection to crypto-
graphic information. These are the Espionage Act of 1917 (50 U. S. C.
31 et seq.), and the above-mentioned act of June 10, 1933. Under the
Espionage Act, unauthorized revelation of information can be penalized
only if it can be proved that the person making the revelation did so
with the intent to insure the United States. Under the 1933 act, only
diplomatic codes and messages transmitted in diplomatic codes are
protected. The proposed legislation is designed to protect against pub-
lication or any other revelation, of intent, of all important
information affecting United States eommun ek euigenee operations
and all direct 'Information about all United States Bodes and ciphers.
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The Navy Department, In conjunction with the Army, Air Force,
Central Intelligence Agency, and the Department of State, strongly recom-
mends the enactment of the proposed bill.
The Navy Department has been advised by the Bureau of the Budget
that there is no objection to the submission of this proposed legislation
to the Congress.
Sincerely yours,
W. 7ostw Hssr,
Acting Secretary of the Navy.
The Senate has amended the bill as recommended by the Departments
by including in section I of the bill, the words "knowingly and willfully."
The purpose of this amendment is to make it clear that it would not be
an inadvertent, idle, indiscreet disclosure, but one which was made for
the purpose prohibited.
The committee recommends that the bill, S. 277, as amended by the
Senate, do pass.
ARMY AND NAVY NURSES - APPOINTMENTS
For text of Act see V. 160
Senate Report No. 1267, Apr. 19, 1950 [To accompany H. R. 5876]
House Report No. 1375, Oct. 10. 1949 [To accompany H. R. 5876]
The Senate Report repeats in substance the House Report.
Senate Report No. 1167
V ~rl-IE Committee on Armed Services, to whom was referred the bill
(H. R. 5876) to amend the Army-Navy Nurses Act of 1947, to pro-
vide for additional appointments, and for other purposes, having consid-
ered the same, report favorably thereon with amendments, and recom-
mend that the bill, as amended, do pass.
PURPOSE OF THE BILL
This bill proposes to reopen for a period of I year the integration
program for the Regular Army Nurse Corps and the Women's Medical
Specialist Corps of the Regular Army and to raise (also for a period
of I year) the age limit for appointment in the Army and Navy Nurse
Corps. It also effects a number of technical changes in the Army-Navy
Nurses Act of 1947 which are rendered necessary because of the enact-
ment of the Officer Personnel Procurement Act of 1947 and the Reserve
Retirement Act of 1948.
EXPLANATION OF THE BILL
The majority of the provisions of this bill are of a technical nature
and are best understood by referring to the section-by-section analysis,
which follows. The most important substantive provision has to do with
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I MEMORANDUM FOR: I
Other places in New York Times
opinion where Section 798 is
mentioned.
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4 V &w y.'Ec ?' iA.J r. 00P 1,P fart SA fk S. y03 v.s. -r/3
ore I t,, arj -6 it U ..S. C. 7 Off
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