CURTAIN AROUND CRYPTOGRAPHY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00965R000100310008-2
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 3
• Document Creation Date: December 22, 2016
• Document Release Date: January 6, 2012
• Sequence Number: 8
• Publication Date: May 18, 1986
• Content Type: OPEN SOURCE

Declassified in Part - Sanitized Copy Approved for Release 2012/01/06: CIA-RDP90-00965R000100310008-2
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WASHINGTON POST
18 May 1986
Curtain Around Cryptography
CIA Chief Invokes Law Aimed at Protecting Codes
By George Ladner Jr.
Washington Post staff writer
On Feb. 20, 1933, with the help of a mus-
tachioed federal prosecutor in New York
named Thomas E. Dewey, the U.S. govern-
ment impounded the manuscript of a book on
national security grounds for the first-and
still the only-time in American literary his-
tory.
Its unexciting title was "Japanese Diplo-
matic Secrets: 1921-22," and it had been
stitched together by a free-lance journalist.
But the prospect of its publication had put the
Justice, State and War departments in a panic
for months because the true author-the
man who supplied the information-was the
father of American cryptography, Herbert Yardl under of the nation's st "Black
Chamber," the man who had broken the Jap-
anese code in 1919.
The seizure was of dubious legality at best.
The espionage statute cited as the excuse for
such action required proof of intent to injure
the United States. Yardley, by all accounts,
had no such intention. But Dewey threatened
prosecution unless Yardley stopped trying to
get the manuscript published. Finally, Yard-
ley relented.
The sequence marked the origins of the
law now being invoked by CIA Director Wil-
liam J. Casey in his warnings of possible pros-
ecution of The Washington Post and other
news organizations for publishing information
about communications intercepts reflecting
U.S. code-breaking capabilities.
It was not until 1950 that Congress enacted
the law, but it really began with Yardley. A bril-
liant Indiana boy, he came to Washington in 1912
as a State Department telegrapher and taught
himself cryptography. He got his chance in
World War I when he was commissioned a lieu-
tenant in military intelligence and assigned to
take charge of MIS, the Cipher Bureau.
10 "MIS," historian David Kahn wrote recently,
"soon discovered spy letters written in invisible
ink, sojved German diplomatic codes and ciphers,
and found specialists to read obscure German
shorthand systems."
By war's end, Yardley was pressing for a per-
manent peacetime organization "for code and
cipher investigation and attack." His wish was
granted, and by the summer of 1919 he had set
up shop in a rented New York brownstone-"a
suitable place," he later wrote, "where the fa-
mous American Black Chamber could bury itself
from the prying eyes of foreign governments."
One of Yardley's first assignments was to
crack the codes of Japan and within a few months
Yardley had done it, out of a sound sleep. The
solution came in plenty of time for the Washing-
ton Armament Conference of 1921-22, a series
of postwar arms control talks at which Japan was
hammered down to a fleet whose size, thanks to
Yardley's Black Chamber, the United States
knew it would accept.
Peacetime work dwindled after that and so did
Yardley's budget, by then almost totally funded
by the State Department. In 1929, President
Herbert E. Hoover's new secretary of state,
Henry L. Stimson, was provided with a few se-
lected translations so he could become ac-
quainted with the Black Chamber's skills.
Stimson was shocked. "Gentlemen," he later
pronounced, "do not read each other's mail."
Having solved the codes of some 20 nations, the
Black Chamber was forced to shut down.
With the Great Depression staring at him, a
devastated Yardley went back home to Indiana,
and decided to write a book. He thought that
Stimson had made a terrible mistake and that
public reaction might cause the government to
think again about what it had done. Besides, he
reasoned, "now that the Black Chamber has been
destroyed, there is no valid reason for withhold-
ing its secrets."
A gifted writer, Yardley produced a bestseller,
"The American Black Chamber." Advance seri-
alization in The Saturday Evening Post fueled
the sales: The book, with chapters devoted to
"Japanese Secret Codes" and "The Washington
Armament Conference," was an especially big hit
in Japan where the Foreign Ministry became the
scapegoat.
The Saturday Evening Post announced the
series March 28, 1931. "Emergency meetings
were called in Washington to decide on a course
of action," wrote ame Ram rd uthor of "The
Puzzle Palace,- a 1982 history o the code-break-
ing National Security Agency and its predeces-
sors. "Prosecution was considered, but rejected,
because it was felt that such a trial would be
compromising as well as embarrassing to the
government. Suppression was also considered,
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but, there being no precedent or legal basis, this
too was rejected."
The more things change, the more they stay
the same. Central Intellience Agency Director
Casey, sources say, asked the justice Depart-
ment recently to seek a court order restraining
The Washington Post from publishing an article
on U.S. intelligence capabilities, but was turned
down. The Post has not decided whether to pub-
lish the article and has declined to comment on
it. Casey has warned The Post that he will rec-
ommend criminal prosecution if the article is
published.
In the 1930s, the secret that the Japanese
code had been broken was already out, but the
government was determined not to allow Yard-
ley an encore. He went on the lecture circuit at
first, touting U.S. successes in cryptology and
warning of a bleak future without them. But as
Bamford has written, Yardley wanted to be ac-
cepted as a serious historian too, and he hit on
The law reamins on the
statute books, but it
appears to be a dead-letter.
No one has ever been
prosecuted under it,
perhaps because it is so
sweeping in its coverage of
material prepared in
diplomatic code and at the
same time so restrictive,
covering only "diplomatic"
codes.
the Japanese role at 1921-22 conference as the
subject for his next book. He had a cache of thou-
sands of intercepted messages to be culled for
the text.
Yardley hired a free-lance journalist known for
her speed, and by the summer of 1932, rumors
of a new Yardley book were circulating. This
time the publishing business played ball with the
government. Yardley's first publisher, Bobbs-
Merrill, rejected the manuscript and alerted the
Justice Department. His agent then turned to
the Macmillan Co. Its president, a former mil-
itary intelligence officer, delivered the manu-
script to a federal grand jury at Dewey's behest.
It remained in federal custody for another 47
years, with portions still marked secret.
Congress, meanwhile, moved to erect a legal
'barrier against a recurrence. The House passed
a sweeping proposal making it a crime to disclose
any government document, whether classified or
not, so long as its release could be shown "prej-
udicial to the safety or interest of the United
States." But news organizations woke up at that
point and demanded revisions.
The result, signed into law by President Roo-
sevelt on June 10, 1933, was what is now Section
952 of Title 18 of the U.S. Code. It makes it a
crime, punishable by up to 10 years in prison and
a $10,000 fine, to disclose any official diplomatic
code or any material that had once been pre-
pared in such code. The law remains on the stat-
ute books, but it appears to be a dead-letter. No
one has ever been prosecuted under it, perhaps
because it is so sweeping in its coverage of ma-
terial prepared in diplomatic code and. at the
same time so restrictive, covering only "diplo-
matic" codes.
Congress, in any case, rested until the end of
World War II when it took up a bill to safeguard
"military information." With so many people leav-
ing for civilian life, Rep. Francis E. Walter (D-
Pa.), one of the chief advocates, said in floor de-
bate on Oct. 25, 1945, "it certainly seems to me
that their lips should be sealed when it comes to
the discussion of some of the things that made
possible the winning of the war."
Critics, however, pointed out that the measure
went far beyond its professed intent of protect-
ing U.S. code-breaking and cryptographic suc-
cesses and played hob with the First Amendment
by covering everything that had been trans-
mitted in code, any code, U.S. or foreign. Several
critics said it would have kept Gen. Johnathan
Wainwright, the hero of Bataan and Corregidor,
from publishing his memoirs. Others objected
that it would condemn the Washington news
corps to a life of official handouts.
"This bill is so broad that it strikes at the very
roots of freedom of speech and freedom of the
press in this country," said Rep. Clarence J.
Brown (R-Ohio). "No one objects, of course, to
protecting the secrets of our military codes or
equipment, but why stifle all information as to
that which has gone before?"
Rep. Charles A. Halleck (R-Ind.) agreed. "We
fought a very successful war over the past four
years," he said. "We have just won that war. We
did not find this sort of legislation necessary
then."
The measure failed to pass, but the military
establishment, unhappy with the laws at its dis-
posal, kept trying.
"At present, there are two acts affording lim-
ited protection to cryptographic information;
acting Secretary of the Navy W. John Kenney
said in a 1948 letter to Congress. "These are the
Espionage Act of 1917 and the... act of June
10, 1933. Under the Espionage Act, unautho-
rized revelation of information can be penalized
only if it can be proved that the person making
the revelation did so with the intent to injure the
United States. Under the 1933 act, only diplo-
matic codes and messages transmitted in diplo-
matic codes are protected."
Kenney submitted a bill that he said would
meet earlier objections since it would not penal-
ize disclosure of "information transmitted in
United States codes and ciphers."
The Senate accepted an amendment sug-
gested by the American Society of Newspaper
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Editors and passed what is now Section 798 of
Title 18, the so-called "Comint (communications
intelligence) law" a few months later. The House
followed suit on May 1, 1950, following a Judi-
ciary Committee report that summed up the
measure in a a single sentence:
"The present bill is designed to protect against
knowing and willful publication or any other rev-
elation of all-important information affecting
United States communication intelligence oper-
ations and all direct information about all United
States codes and ciphers."
The House report then proceeded to give a
misleading bit of history about Yardley, asserting
that his first book had caused "irreparable harm"
and suggesting that the Japanese had made their
codes so complex that the United States was
helpless on the eve. of Pearl Harbor.
"It can be said," the House report stated, "that
United States inability to decode the important
Japanese military communications in the days
immediately leading up to Pearl Harbor was di-
rectly ascribable to the state of code-security
consciousness which the revelations of a decade
earlier had forced on Japanese officialdom."
In fact, William F. Friedman, who some have
called "the world's greatest cryptologist," had
broken the new Japanese Foreign Office Code
for the Army Signal Corps in 1936 and then the
more-complex Purple Code on Sept. 25, 1940.
Washington knew what was coming that Decem-
ber day in 1941, even though it did not get word
to Hawaii in time.
The 1950 Comint law has never been used
against a news organization. It was first invoked
in 1954, according to Bamford, when a former
NSA employe, Joseph S. Petersen Jr., was pros-
ecuted for passing secrets to a World War 11
friend from the Netherlands who was stationed
in Washington. Petersen was sentenced to seven
years in prison.
Its most recent use is in connection with the
case against Ronald W. Pelton, a former NSA
communications specialist awaiting trial as an
alleged Soviet spy.
The most celebrated case involving Section
798 came in 1977 when Christopher Boyce, a
24-year-old code-room clerk at a West Coast
firm with with a direct link to the CIA, was ac-
cused with his boyhood friend, Andrew Dalton
Lee, of selling thousands of secrets to the Soviet
Union over a two-year period. Government pros-
ecutors tried to limit the public disclosures by
producing testimony about only one project that
might have been compromised, a CIA commu-
nications satellite plan code-named "Pyramider"
that never got past the drawing board.
Sentenced to 40 years in prison, Boyce ap-
pealed, contending, among other points, that the
information in the Pyramider documents was old
stuff, available in standard engineering texts, and
thus improperly classified. The 2nd U.S. Circuit
Court of Appeals in San Francisco rejected the
claim with a ruling that underscored the bite of
Section 798.
The law makes it a crime for anyone to trans-
mit-knowingly and willfully-to an unautho-
rized person, or publish "any classified informa-
tion" concerning U.S. or foreign communications
intelligence activities or "any classified
information... obtained by the process of com-
munications intelligence from the communica-
tions of foreign governments."
"Under Section 798," Circuit Judge Shirley
Hufstedler wrote in the Boyce case, "the propri-
ety of classification is irrelevant. The fact of clas-
sification of a document or documents is enough
to satisfy the classification element of the of-
fense."
"It's a tough statute," Bamford told a reporter.
"It's the closest thing to an Official Secrets Act
that the United States has."
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