CAN DEMOCRACY KEEP SECRETS? DO WE NEED AN OFFICIAL SECRETS ACT?

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP05C01629R000100080004-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 14
• Document Creation Date: December 22, 2016
• Document Release Date: December 2, 2011
• Sequence Number: 4
• Content Type: OPEN SOURCE

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Fall 1983 RE VIE WL,
Controversy
Law without Law Shirley Robin Letzc'in
Can Democracy Keep Secrets?
Guenter Lewy
17
Thatcherissima
Ronald Butt. Ralph Harris.
Victoria Sackett
30
Feeding Everybody
James Bovard
42
How Not to Cut Crime
Ernest van den Haag
53
Educational Disinvestment
Warren C. Robinson
59
The Naturalist Fallacy
Judith Chettle
66
Nuclear Journalism
Bernard Cohen
70
NIP in the Air
Richard B. McKenzie
75
Against the Grain
Samuel T. Cohen
88
Tales from the Public Sector
Antonio Martino
93
Reviews
Michael Levin, Stephen Haseler,
Dennis J. 0 'Kee f fe, Russell Kirk,
Spencer Warren
94
Soothsaying
David Ranson
111
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Number 26
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POLICY REVIEW Fall 1983 No. 26
Can Democracy Keep Secrets?
Do We Need an Official Secrets Act?
TT
Guenter Lewy
nder current American law, an employee of the
Department of Agriculture who reveals information on
next year's soybean crop estimate may find himself be-
hind bars. But an employee of the Defense Department
who leaks classified defense information to a member of
the press is probably not
guilty of any criminal of-
fense. Similarly, a report-
er who obtains secret na-
tional security informa-
tion and publishes it on
the front page of his
newspaper most likely
has not committed es-
pionage or violated any
law.
ing classical espionage, the transmission of defense infor-
mation to a foreign power; and those governing the
disclosure of classified information by a present or for-
mer employee or official of the government. As complex
and confused as much of this body of law is, it becomes a
veritable minefield of
legal ambiguities when
applied to the publication
of such information by
the media.
The law concerning es-
pionage is to be found in
sections 793 to 798 of Ti-
tle 18 of the United States
Code. Most of these pro-
visions were enacted in
The United States may be the only
nation . . . without any meaningful
defense against the publication of clas-
sified defense information.
The qualifications "probably" and "most likely" are
necessary because the only certainty about our statutes
on leaking and publishing defense'] n format ion is that
they are a morass. Concerned citizens and various com-
missions of experts have drawn attention to this state of
affairs, but Congress has failed to act. The most recent
attempt to deal with this charged issue came during the
almost decade-long endeavor to update the federal crimi-
nal code, but it ended in the spring of 1982 in yet another
stalemate between liberals and conservatives. The deci-
sion of the Supreme Court in the Pentagon papers case,
which might have clarified some of the constitutional
Issues involved, instead raised more questions than it
answered.
Today the United States may he the only nation in the
world without any meaningful defense against the pub-
lication of classified defense information. Even in Swe-
den, a country with a tradition of open government more
than two centuries old, a civil servant and two journalists
were sent to jail in 1973 for their share in the publication
,,f a series of articles about Sweden's security services.
( ?rcat Britain, the longest-functioning parliamentary de-
mocracy, has one of the strictest systems of official sc-
rccy. On grounds of historical experience, at least, there
Is therefore room for the argument that the United States
.ould take measures to protect its vital secrets without
sacrificing its liberties. Absolutist interpretations of the
(:onstitution, according to which the First Amendment
stands in the way of such legislation, deserve a respectful
hearing but may prove unconvincing. An unrestricted
right to disseminate national security information is not
essential for a free people and indeed may threaten the
\erv survival of that society. The Constitution, as the
Supreme Court has often affirmed, is not a suicide pact.
Present statutes fall into two categories: those concern-
( an Democracy Keep Secrets?
the Espionage Act of 1917,1 and a few were added by the
Internal Security Act of 1950.1 Analysis of the language
of these statutes and of their legislative history makes it
likely that they do not prohibit the publication of defense
information.
The most comprehensive provisions are in section 794.
Subsection 794(a) punishes by death or imprisonment up
to life the actual or attempted communication to any
foreign government or foreign citizen of "any document,
writing, code hook, signal book, sketch, photograph,
photographic negative, blueprint, plan, map, model,
note, instrument, appliance, or information relating to
the national defense." Such communication is unlawful if
done "with intent or reason to believe that it is to he used
to the injury of the United States or to the advantage of a
foreign nation." There are ample grounds to think that
this section does not aim at public speech or publication.
The proscribed activity is communication to a foreign
recipient; one who publishes defense information does
not thereby communicate it to foreigners in the sense of
the statute, nor does he necessarily have a culpable intent
to injure the United States or aid a foreign power. Pre-
sumably, the framers of this legislation saw a difference
between communicating and publishing, and an exam-
ination of the prolonged debates in the Congress in 1917,
covering more than 300 pages of the Congressional Rec-
ord, reinforces, if not confirms, this conclusion.'
Subsection 794(h) punishes by death or imprisonment
up to life the communication or publication "in time of
war" of information concerning the movement or dis-
position of troops, of plans of military operations or
Guth rf K l.F.wN,, author of The Federal Loyalty-Security
Program: The Need for Reform (198.3), is a professor at the
University o% Massachusetts.
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fortifications, or of "any other information relating to
the public defense, which might be useful to the enemy."
Subsection 794(b) is applicable only "in time of war";
however, it punishes not only the communication of
defense information to an enemy but also the publication
of such information-if done "with intent that the same
he communicated to the enemy."
Treasonable Intent
The legislative history of subsection 794(b) reveals
that a majority of the Congress in 1917 did not want to
prohibit all publication of defense information. Al-
though the Wilson administration sought just such a
statute-a blanket restriction on the publication of de-
fense information without any limiting requirement of
intent-Senate progressives, including Borah, La Fol-
lette, Norris, and Hiram Johnson, feared the aggrandize-
ment of presidential power during wartime and were
determined to prevent a general censorship provision.
The language that was finally approved therefore re-
quired an intent that will be present only very rarely. The
only publication prohibited by subsection 794(6) is pub-
lication that has the purpose of informing the enemy-
the kind of activity engaged in by a disloyal newspaper or
by a disloyal person inserting a coded advertisement.
Congressional supporters of a more sweeping provision
pointed out in the spirited debate that a newspaper's
disclosure of defense information could aid the enemy
even if the newspaper's editors and reporters acted with-
out a treasonable purpose. Nevertheless, their argument
did not prevail, and subsection 794(6) probably reaches
only the kind of publication that has the specific purpose
of informing the enemy.4
Subsection 794(6) harbors other ambiguities. The stat-
ute does not say who determines the country's "enemy."
And in today's world it is not always obvious who the
enemy is. Were the Vietcong who shot at U.S. military
advisers in 1964 an enemy within the meaning of the
statute, or did they become an enemy only after the
introduction of regular U.S. combat forces and the begin-
ning of all-out hostilities with North Vietnam in 1965? In
1972 the United States bombed Chinese ships in Hai-
phong harbor while it played host to the same country's
Ping-Pong team. Was Communist China then our en-
emy? A statute that exposes the average citizen to such
uncertainties in deciding the outer limits of legal activity
may have difficulty passing constitutional muster.
Additional problems of interpretation arise with sec-
tion 793, which names six offenses involving the gather-
ing of defense information, each punishable with im-
prisonment of up to ten years. Subsection 793(a) covers
entering or flying over a defense installation "for the
purpose of obtaining information respecting the national
defense with intent or reason to believe that the informa-
tion is to be used to the injury of the United States, or to
the advantage of any foreign nation." Subsection 793(6)
concerns taking or copying "with like intent or reason to
believe" documents, plans, maps, or photographs from
such installations. These offenses are not defined in terms
of the actor's intent to deliver defense information to a
foreign power, as in subsection 794(a), or to aid an
enemy in time of war, as in subsection 794(6). Could
these provisions reach the information-gathering ac-
tivities of reporters or their informants?
There is first the question of the meaning of "informa-
tion respecting the national defense." In an era when
virtually every facet of civilian life can have an important
hearing on the nation's military capabilities, what kind of
information is included or excluded by that phrase?
The problems of interpretation were noted during the
congressional debate in 1917, but no agreement was
reached on a more precise term. In the years since, the
courts have had occasion to give content to the amor-
phous language of the statute. In the landmark case of
Gorin v. United States,5 decided in 1941, the Supreme
Court ruled that the term "information related to the
national defense" was sufficiently precise and did not
create due-process problems of vagueness. National de-
fense, said the Court, is a "generic concept of broad
connotations, referring to the military and naval estab-
lishments and the related activities of national prepared-
ness." Whether any particular information was related to
the national defense and protected by the espionage act
was for the jury to determine from an examination of the
material and expert testimony on its significances'
The Supreme Court's ruling in the Gorin case leaves
many questions unanswered. What about information
relating to the nation's economic strength, civilian mo-
rale, or the diplomatic establishment? How important
must the information be? Is every little detail, such as that
sailor John Doe has joined the submarine fleet, to be
protected? What about information that the government
has not sought to keep secret or data that have found
their way into the public domain despite such endeavors?
Lawful Sifting
The last-mentioned issue arose in United States v.
I leine,' a case decided in 1945 by judge Learned Hand of
the Court of Appeals of the Second Circuit in a ruling left
standing by the Supreme Court. Shortly before World
War II, defendant Heine, a naturalized citizen of German
origin, had compiled extensive reports on the U.S. avia-
tion industry and had mailed these to different addresses
for forwarding to Germany. The evidence allowed the
inference that he had chosen this procedure to avoid
detection. Still, Judge Hand ruled that Heine was not
guilty of espionage because the information Heine col-
lected came from sources that were lawfully accessible to
anyone willing to take the pains to find and sift them-
books, magazines, newspapers, correspondence with
manufacturers, talks with employees. Moreover, the
government had not tried to prevent the dissemination of
this kind of information. No matter what the motive,
Judge Hand concluded, whatever was lawful to broad-
cast throughout the country was lawful to send abroad.
In the Gorin case the expansive reach of the term
"national defense" was saved from the constitutional
infirmity of overhreadth by judge Hand's ruling that the
sanctions of the act applied only if scwnter (a knowing
violation of the law or a guilty intent) was established:
"The obvious delimiting words in the statute are those
requiring'intent or reason to believe that the information
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to he obtained is to be used to the injury of the United
States, or to the advantage of any foreign nation.' This
requires those prosecuted to have acted in bad faith.""
The same culpability standard is used in section 794(a)
and in other parts of section 793. Applied literally, this
way of establishing the presence of mens rea (a guilty
mind) would appear to create serious difficulties for
public speech and publication.
According to the usual meaning of words, a reporter
who obtains and publishes secret defense information
probably has reason to believe that this information
would be used to injure the United States or help a foreign
power. Foreigners, and especially agents of foreign intel-
ligence services, are known to be avid readers of our
publications. For example, had the New York Times in
1961 published an account of the imminent invasion of
Cuba, as President Kennedy is said to have thought it
Foreigners, and especially agents of
foreign intelligence services, are
known to be avid readers of our pub-
lications.
should have done, Cuba would undoubtedly have bene-
fited. Read in this way, subsections 793(a) and 793(h)
bring about the kind of general prohibition on publica-
tion that the Congress in 1917 clearly wished to avoid.
Both the House and the Senate were aware of the
passible pitfalls in this section of the law. Yet despite the
sweeping language of the culpability standard adopted-
"intcnt or reason to believe"-they appear to have been
convinced that the information-gathering offenses of
subsections 793(a) and 793(h) were adequately limited
by a requirement that there exist a proven evil purpose to
reveal the information to a foreign country or to injure
the United States. If correct, such a reading of the law
may indeed protect journalists whose primary purpose in
gathering defense information is neither to injure their
country nor to aid a foreign nation, but it causes prob-
lems in certain traditional cases of espionage. For exam-
ple, a serviceman who sells military secrets to a foreign
agent could claim that his main purpose was to obtain
money, not to injure the United States. To prevent such
an interpretation, it probably is necessary to focus on the
actor's state of mind about the use of the secret informa-
tion. This would require us to read the phrase "reason to
believe" not simply as being aware of likely consequences
but as understanding the primary use to which the infor-
mation will he put by others. The greedy serviceman
presumably has reason to believe that the information he
sells will be used primarily to injure the United States or
advantage a foreign country. By contrast, the reporter is
aware that some persons will put his story to such use,
but the primary uses he seeks are those that enlighten his
compatriots.9
Sections 793(d) and 793(e), probably the most confus-
Can Democracy Keep Secrets?
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ing of the espionage statutes, come closest to touching the
activities of reporters because their sweeping provisions
lack a specific evil intent requirement. In the original
version this part of the 1917 statute was meant to apply
only to government employees. That such employees can
be held to a higher standard of loyalty than the popula-
tion at large may explain the absence of a clear
culpability standard. In 1950, while working on the In-
ternal Security Act, Congress split the section into two
and made it apply to all persons.
Subsection 793(d) imposes a fine of not more than
$10,000 or imprisonment up to ten years on any person
who, havI _g lawful access to or possession of any docu-
ment, map, photograph, etc. "relating to the national
defense" or entrusted with 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 the same "to any person not
entitled to receive it" or retains the same. Subsection
793(e) imposes the same penalties on anyone who, hav-
ing unauthd access to or possession of such items,
communicates these to any person not entitled to receive
them or willfully retains them. Subsection 793(d) reaches
people with lawful possession of defense-related mate-
rial; subsection 793(e) covers people not connected with
the government who have unauthorized possession. Ap-
plied literally, these sections could well affect journalists,
even though legislative history makes it appear that Con-
gress was unaware of this possibility and indeed did not
want to prohibit the publication of defense information.
Sections 793(d) and 793(e) raise a host of complex
issues. Who, for example, is entitled to receive defense
information? One is tempted to think that this provision
refers to the classification system that provides for autho-
rized access after security clearance. The problem is that
no such classification system existed in 1917, when the
phrase in question was first used. Moreover, Congress
until now has steadfastly refused to enforce the classifica-
tion system with criminal sanctions. Another example:
The phrase "relating to the national defense" here, unlike
subsections 793(a) and 793(b), is not limited by a scienter
(guilty intent) requirement and therefore may be subject
to constitutional challenge on grounds of excessive
vagueness and overbreadth. Similar problems arise in
connection with the offense of retention. Given the con-
stitutional rule that overly broad statutes touching on
First Amendment freedoms may be attacked even by
those whose activities could legitimately be subject to a
narrower statutory regulation or prohibition, it is highly
questionable that subsections 793(d) and 793(e) could
survive judicial scrutiny if applied to the work of the
press. The same result can be expected from the absence
of a culpable intent requirement, generally necessary in
statutes bearing on freedom of expression.
Exemption for the Fourth Estate
The conclusion that Congress in 1950 had not thought
to enact a general prohibition on the publication of de-
fense information is reinforced by its concurrent passage
of section 798, which made it criminal to publish classi-
fied information concerning a narrow class of highly
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secretive items, such as codes, ciphers, and cryptographic
systems. Since those items clearly constitute "informa-
tion relating to the national defense," it is reasonable to
conclude-and the legislative history of section 798 sup-
ports this finding-that Congress did not consider the
more general statutes an adequate protection against the
publication of such information and therefore enacted
more explicit legislation.
Other statutes bearing upon the publication of defense
information for the most part aim at employees of the
government. Here, too, it is apparent that Congress went
out of its way to exempt newspapers and reporters from
the reach of these laws. In 1933 Congress enacted what is
now section 952 of Title 18 of the U.S. Code, which
protects diplomatic codes. Enactment was prompted by
the 1929 publication of a former State Department em-
ployee's book, The American Black Chamber, which
described code-breaking procedures and included trans-
lations of decoded dispatches by the Japanese govern-
ment. In late 1932 a second manuscript on the same
subject was completed. The law that was approved
punishes by fine or imprisonment anyone who "by virtue
of his employment by the United States" obtains an
official code or coded message and "willfully publishes
or furnishes to another any such code or matter." A
proposal to include anyone and not just present or for-
mer government employees was rejected. Debate over
this bill made it clear that it was aimed solely at federal
employees.who breached their trust, not at reporters or
newspapers publishing code material.
In 1950 Congress included in the Internal Security Act
a provision that made it unlawful for an officer or em-
ployee of the federal government to communicate to any
agent of a foreign government or member of an officially
designated communist organization any classified infor-
mation, "knowing and having reason to know that such
information has been so classified." The provision is
codified in section 783(b) of Title 50 of the U.S. Code;
section 783(c) prohibits agents of foreign governments
from knowingly receiving such classified information.
Foreign Agents
In the case of Scarbeck v. United States,1 ? decided in
1962, the U.S. Court of Appeals for the District of Co-
lumbia upheld the conviction of a Foreign Service officer
for communicating classified documents to representa-
tives of the Polish government in violation of subsection
783(b). The argument of the defendant-that the jury
should have passed on the propriety of the classifica-
tion-was rejected. Unlike the espionage statutes_is-
cussed earlier, the so-called Scar heck statute does not
require the government to prove that the classified infor-
mation related to te ionardefi nse or that it was
communicated with intent to injure-the United States or
give advantage to a foreign government The court made
it clear that the Scarbeck statute covers only present
officers or employees of the government, and it applies
only when the recipient of the information was someone
the defendant knew or had reason to believe was an agent
of a foreign government or a member of a communist
organization. In other words, a government employee
who leaks classified information to a reporter has not
violated the Scarbeck statute unless the reporter is a
foreign agent or a member of a communist organization;
an editor who publishes the information in his news-
paper likewise has not committed an offense.
The Atomic Energy Act of 194611 includes a prohibi-
tion on the communication or disclosure of certain class-
es of "restricted data" concerning atomic weapons and
nuclear energy-sections 2271-2281 of Title 42 of the
U.S. Code. Section 2777 makes it unlawful for present or
former government employees or contractors to disclose
restricted data to anyone not authorized by the Atomic
Energy Commission to receive same; the culpability stan-
dard in section 2774 covers not only willful infliction of
injury on the United States or securing an advantage to a
foreign nation but also recklessness, and perhaps negli-
gence, in the handling of such data. Section 2275 makes
criminal the receipt of restricted data with intent to injure
the United States or advantage a foreign power.
The injunction proceeding that section 2280 author-
izes against a violation was invoked in 1979, when How-
ard Moreland was writing a magazine article on the
working of the hydrogen bomb. The government con-
tended that the article contained restricted data. In
March the U.S. District Court in Milwaukee issued a
preliminary injunction prohibiting the Progressive from
publishing the article and directing the author and editor
to secure all copies.)2 This was the first time in U.S.
history that a federal judge had imposed prior restraint
on the press. However, before the injunction could he
made permanent, several other newspapers, including
the Chicago Tribune, published a letter by another au-
thor with similar technical data. In September, therefore,
the justice Department ended its efforts to prevent the
publication of the Moreland article.
Sneak Previews
There is one other way in which the government can
enforce secrecy: by exacting agreements from employees
never to divulge without prior permission information
related to the national defense that was acquired during
the course of employment. Such secrecy agreements, used
by the intelligence agencies, cover not only former agents
but also the publishers of books written by such persons.
In 1972 the government successfully relied upon a se-
crecy agreement to obtain an injunction requiring former
CIA employee Victor Marchetti to submit his manuscript
about the CIA for prepublication review. 1 ; As a result of
this decision, left standing by the Supreme Court, Mr.
Marchetti's book, The C.I.A. and the Cult of Intelli-
gence, was published in 1974 with 168 deletions. A
subsequent suit by Mr. Marchetti's publisher to use the
deleted material ended in failure.14
Still another way to deter unauthorized publication of
defense information is to seize the profits of hooks pub-
lished in violation of a secrecy agreement. The govern-
ment took this route when former CIA agent Frank
Snepp published a book about the CIA's activities in
South Vietnam without submitting it for review. The
Supreme Court upheld the judgment against Mr. Snepp
on the grounds that the former agent had willfully
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breached his agreement with the CIA not to publish any
information without clearance. "Whether Snepp vio-
lated his trust," the majority found, "does not depend
upon whether his book actually contained classified in-
formation." The very fact that agents publish books
about the CIA without approval weakens the agency's
ability to perform its duties. Both foreign intelligence
services and individual foreign agents increasingly ques-
tion the advisability of working with a CIA that cannot
guarantee the security of information likely to compro-
mise them or endanger the personal safety of agents. The
proper remedy, the Court concluded, was to enjoin fu-
ture breaches of Snepp's agreement and to seize the prof-
its of the book by way of a "constructive trust."1-S
All members of the Court ruling on the Snepp case
agreed that even in the absence of a written contract,
under the common law an employee has a fiduciary
Foreign intelligence services ... ques-
tion ... working with a CIA that can-
not guarantee the security of informa-
tion likely to compromise them .. .
obligation to pr(xect confidential information obtained
during his employment and that a breach of this obliga-
tion could he punished by the seizure of personal profits
from the exploitation of such information. This finding
could open the way for the government to try to penalize
anv employee who publishes information about his offi-
cial duties without first clearing it with his superiors.
(,uidelines issued in December 1980 by the outgoing
attorney general of the Carter administration, Benjamin
R. Civiletti, waived any intention to bring such suits
unless there existed an express clearance obligation and
unless the information was properly classifiable and like-
ly to harm national security, but these were revoked by
Attorney General William French Smith of the Reagan
administration in September 1981.1('
On March 11, 1983, President Reagan issued National
Security Decision Directive No. 84, "Safeguarding Na-
tional Security Information," which requires all employ-
ees of the government with access to classified informa-
tion to sign a nondisclosure agreement as a condition of
access. Persons with access to Sensitive Compartmented
Information (that is, highly sensitive intelligence infor-
mation) from now on will also be required to sign a
promise to submit all manuscripts for prepublication
review. Such agreements are to be in a form enforceable
in a civil action brought by the United States.17 Whether
the threat of civil suits will discourage leaks of confiden-
tial or classified information remains to be seen.""
A review of applicable law yields the conclusion that
except for a narrow range of cryptographic information
and restricted data concerning atomic energy, and except
in cases where the sole purpose is communication to a
foreign power, publication of defense information prob-
(:an Democracy Keep Secrets?
ably is not prohibited. Present or former employees of the
government who in peacetime publish or leak such infor-
mation to the press most likely are also not subject to any
criminal sanctions other than possibly the seizure of
profits gained. Until the prosecution of Daniel Ellsberg
and Anthony Russo for their role in the publication of the
Pentagon Papers, the government had never prosecuted
any leak of defense information and had relied instead on
administrative sanctions, such as dismissals, or the with-
drawal of a security clearance. Despite numerous oppor-
tunities, no prosecution has ever been brought under the
espionage laws for the publication of secret information
damaging to national security. Even in the case of the
Pentagon Papers, when an attempt to prevent publica-
tion was made, the government did not rely on the es-
pionage statutes; some justices expressed the view that
the espionage laws might have authorized criminal sanc-
tions against the newspapers and reporters involved.
When in June 1971 the New York Times and the
Washington Post began publication of the Pentagon's
"History of U.S. Decision-Making Process on Viet Nam
Policy," the so-called Pentagon Papers, the government
went to court, arguing that the president's constitutional
powers as commander-in-chief and steward of foreign
relations entitled him to injunctive relief to prevent
"grave and irreparable danger" to the public interest.
Apparently, the government decided not to invoke the
espionage statutes because it believed they did not au-
thorize an injunction against publication. Yet this at-
tempt to achieve equitable relief without regard to exist-
ing legislation failed. When the case reached the Supreme
Court, the only proposition commanding a majority was
that the government had not made an adequate record to
justify the injunctive relief sought. 19 The basic ques-
tion-whether publication of defense information vio-
lated espionage laws-therefore was untested.
Wartime, Peacetime
Of the ten opinions, Justice White's came closest to
affirming the applicability of the espionage laws. The
government, he argued, had not justified the imposition
of prior restraint on publication, an action that under the
First Amendment hears a heavy presumption against its
constitutional validity. However, that the government
had mistakenly chosen to proceed by injunction did not
mean that it could not have successfully proceeded in
another way. Various laws imposed criminal sanctions
on the publication of certain types of defense informa-
tion. "I would have no difficulty in sustaining convic-
tions under these sections on facts that would not justify
the intervention of equity and the imposition of a prior
restraint."20 Justice Stewart joined this opinion, and
Chief Justice Burger registered "general agreement" with
Justice White's view "with respect to penal sanctions
concerning communication or retention of documents or
information relating to the national defense."21 Justice
Blackmun, too, stated that he was "in substantial ac-
cord" with this position.22
Several justices also indicated that in some extreme
cases they might even support the issuance of a restrain-
ing order to enjoin a newspaper from publishing sensitive
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defense information in its possession. Quoting Near v.
Minnesota, Justice Brennan affirmed that in times of war
nobody would question the right of the government to
prevent "the publication of the sailing dates of transports
or the number and location of troops."2,1 Justice White,
joined by justice Stewart, stated that by concurring in the
decision of the Court, "I do not say that in no circum-
stances would the First Amendment permit an injunction
against publishing information about government plans
or operations."24 Chief Justice Burger, too, rejected the
view that the First Amendment asserts an absolute right
of freedom of the press. Referring to the exceptions cited
in Near v. Minnesota, he added: "There are no doubt
other exceptions no one has had occasion to describe or
discuss."2S However, all of these comments represented
ohiter dicta-incidental remarks that did not provide a
resolution of the important underlying question concern-
ing the peacetime limits on the right of publishing nation-
al defense information.
The prosecution of Daniel Ellsberg and Anthony Rus-
so might have resulted in some limited clarification of the
espionage laws. Both men were indicted for violating
subsection 793(e), which makes unlawful the unauthor-
ized possession and retention of defense information.
The principal event relied upon was the photocopying of
the classified Pentagon Papers. Since to publish informa-
tion, one must first possess it, a ruling on this indictment
might have thrown some light on the legality of leaking-
actions preparatory to publication. The men were also
charged with stealing government property, though it
was not clear whether the government regarded the in-
formation in the Pentagon Papers or the documents
themselves as property. As it turned out, all these ques-
tions remained unanswered, since after the break-in at
the office of Daniel Ellsberg's psychiatrist was dis-
covered, the case was dismissed because of improper
government conduct. The extent to which the leaking or
publication of defense information constitutes a criminal
offense under the espionage laws or other relevant stat-
utes thus remains obscure.
Great Britain: Voluntary Compliance
The world's oldest democracy, Great Britain, has one
of the most elaborate systems of official secrecy. This
observation is not meant to suggest a causal connection
between democracy and secrecy or to argue that the
British tradition of secrecy is beyond criticism and should
be copied. But although a democratic form of govern-
ment requires that people be informed about basic issues
of public policy, democracy does not rule out such mea-
sures as Britain's system of D (for defense) notices, which
is designed to prevent sensitive information from falling
into the hands of the country's adversaries.
The first British Official Secrets Act, passed in 1889,
provided criminal sanctions against peacetime espionage
and the unauthorized leaking or selling of information
obtained by a civil servant. In 1911 this legislation was
replaced by a new act that imposed penalties also on the
recipient of unauthorized disclosures. Minor amend-
ments were enacted in 1920 and 1939, but the important
provisions are sections 1 and 2 of the 1911 act.
Section 1, concerned with espionage, is relatively un-
controversial except that it places on the accused the
burden of proving that he did not act with a purpose
prejudicial to the safety or interests of the state.
Section 2 makes it criminal for a civil servant or gov-
ernment contractor to communicate any kind of official
information to an unauthorized person and for such a
person to receive this information. "Official informa-
tion" includes not only information related to national
security but also any kind of data acquired in the course
of employment. This section, it is generally agreed, is
poorly drafted. It could lead to more than 2,000 differ-
ently worded charges, and it does not even fully clarify
whether mens rea must be proven. The catchall provi-
sions of the Official Secrets Act are saved from absurdity
only by the requirement that prosecutions have the con-
sent of the attorney general, and this consent has not
often been given. Still, the many recipients of official
information have little guidance for their day-to-day con-
duct of business. Moreover, the threat of prosecution
puts a damper on the release of all kinds of information
that cannot possibly be regarded as prejudicial to the
state. Civil servants have been able to protect themselves
from accusations of incompetence or mismanagement;
debates on important issues have been handicapped by
the public's lack of adequate background knowledge;
discussion is constrained.
As Harold Wilson once put it: "It's easy to find the
answers to the questions; what's difficult is to find the
questions to the answers."26
Members of the press and the broadcasting services
have the unofficial assurance that they will not be pros-
ecuted for disclosing information concerning the nation-
al security as long as they comply with the D notices.
These are issued to the newspapers and radio and televi-
sion stations by the Defence, Press, and Broadcasting
Committee, composed of four government officials from
defense and national security departments and eleven
representatives of the media. In urgent cases, the secre-
tary of the committee, a full-time official of the Ministry
of Defence, can issue a D notice on his own responsibility
after obtaining the concurrence of two media members;
indeed, the full committee rarely meets. The notices in-
form the media that the government regards a given item
of information as secret and requests that it not be pub-
lished.
Although compliance with the D-notice system is en-
tirely voluntary, there have been few cases of nonobser-
vance. The media have found it useful to have someone to
consult on whether a proposed article might uninten-
tionally harm an important national interest. During an
official inquiry into the system in 1967, no media repre-
sentatives suggested that it be abolished.27
Besides helping journalists and editors, the D-notice
system undoubtedly enables them to minimize the ever-
present threat of prosecution under the Official Secrets
Act. Increased sensitivity to this threat, especially during
the last fifteen years or so, has led to growing criticism of
the act. In 1968 a committee concluded that the adminis-
trative process was surrounded by too much secrecy and
recommended that the government examine the entire
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subject of "unnecessary secrecy," including a review of
the Official Secrets Act.28 The Labour government of the
day reacted defensively, but in 1970 the Conservative
election manifesto promised to examine the operations
of the act. In 1971 the new Conservative government
appointed a committee under Lord Franks to review
section 2 of the Official Secrets Act of 1911.
The report of the Franks Committee was published in
September 1972. Its verdict: Section 2 was "a mess."
People could not know what it meant or how it operated
in practice or what kinds of action involved a risk of
prosecution. The committee recommended that section 1
he replaced by an espionage act and section 2 by an
official information act. The criminal sanctions of the act
were to apply to four types of official information:
? Classified information relating to the defense or se-
curity of the realm or to foreign relations or the currency,
... close-up pictures of the gore of
war on the nightly TV screens, for
example, are not always conducive to
winning.
the unauthorized disclosure of which was likely to cause
serious injury to the interest of the nation. This category
was to include information concerning the armed forces,
weapons, military equipment, research and development
of weapons or equipment, defense policy, military plan-
ning, the intelligence services, negotiations of treaties
with other powers, and the like.
? Information likely to assist criminal activities or to
impede law enforcement.
? Cabinet documents, so as to safeguard the collective
responsibility of the cabinet.
? Documents entrusted to the government by a private
individual or firm.
The Franks report rejected the suggestion that the
disclosure of classified information made in good faith
and in the public interest was a valid defense against the
charge of having caused serious injury to the nation.
Damage to the national interest, it declared, does not
depend on bad intentions. "It is caused when certain
kinds of official information get into the wrong hands. It
makes no difference whether the information reached
those hands as a result of espionage or of leakage."29
Before a prosecution for the disclosure of information,
the appropriate minister should determine that the infor-
mation was properly classified at least "Secret" or "De-
fense-Confidential." The idea of involving the courts in
deciding the fact of injury to the nation was turned down.
The leakage of other official information was to be dealt
with through administrative, not criminal, sanctions.
The mere receipt of official information should no
longer be an offense, the Franks report said, though
further communication of classified information was to
remain unlawful if done with awareness of the secret
Can Democracy Keep Secrets?
nature of the information. "If a civil servant has failed to
protect a secret, there is no justification for the view that
a citizen who thereby comes into possession of that se-
cret, and who knows that it is a secret, should be free to
compound the failure of the civil servant, and to harm the
nation, by passing on the secret as he pleases."'('
The proposals of the Franks Report were criticized as
both too radical and too conservative. In the election
campaign of 1974 the Labour party promised to replace
the Official Secrets Act with a law that incorporated the
principle of freedom of information. However, by the
time the Labour government got around to making con-
crete proposals, pressure had grown for legislation that
would establish a clear right to know. A bill incorporat-
ing this idea was introduced in 1978, but before Parlia-
ment could take final action, the government fell and
Parliament was dissolved. A new proposal to replace
section 2 of the Official Secrets Act was introduced in late
1979 with the backing of the new Conservative govern-
ment. Critics called this bill worse than section 2 itself.
But then Andrew Boyle's Climate of Treason was pub-
lished. It led to the revelation that Sir Anthony Blunt,
former keeper of the Queen's pictures, was once a Soviet
agent. Under the government bill, it was now pointed
out, the publication of that book and all public discus-
sion of the Blunt case would have been a criminal offense.
The government thereupon withdrew its bill, and no new
legislative initiative has had its backing since then.
The Official Secrets Act thus remains British law. As
one critic of Britain's continuing tradition of government
secrecy has put it: "Britain is about as secretive as a state
can be and still qualify as a democracy.""
After the conclusion of the Falklands conflict in 1982,
several well-known British journalists complained about
censorship. Others have argued that there are some
things more important than the people's right to know
and that close-up pictures of the gore of war on the
nightly TV screens, for example, are not always con-
ducive to winning. "We British," a lead writer for the
Daily Telegraph has observed, "practise the residual se-
crecy of an old empire linked up with the new bureau-
cratic style of a country enmeshed in civil servants. It isn't
something to be idealistic about, but arguably it makes
the courage of soldiers and the will of a strong Prime
Minister just that degree more likely to achieve their ends
and gives them a breathing space in which to do what is
necessary. "32
Sweden: Certain Sanctions
Sweden is another democratic country that insists on
preventing the publication of certain types of defense
information. A tradition of open government was estab-
lished by the Freedom of the Press Act of 1766, which is
part of Sweden's constitution. Under this law, amended
in 1937, all government papers, unless specifically ex-
empted by the act, are open for public inspection. A
system of appeal and review is available when access is
denied. The law also incorporates the Secrecy Act, which
provides criminal sanctions for the publication of mat-
ters concerning foreign policy or defense that if disclosed
could threaten national security. Furthermore, the es-
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pionage section of the penal code authorizes the prosecu-
tion of anyone "who, with the intent of aiding a foreign
power, without authorization, obtains, transmits, gives,
or otherwise reveals information . . . the disclosure of
which to a foreign power can bring harm to the defense of
the Realm." This law also applies to a person who, with
like intent, "without authorization produces or is con-
cerned with a writing, drawing or other object containing
such information.''
The seriousness that Sweden attaches to protecting
information was apparent in the so-called lB affair in
1973. Helped by leaks from a civil servant, two left-wing
journalists that year prepared and published a series of
articles about the Swedish Information Bureau. The arti-
cles gave the names of IB officials, the addresses of lB
offices, and information about cooperation between the
IB and the security services of other countries, such as the
United States, Great Britain, and Israel. Contrary to ex-
pectations, the informant and the two journalists were
charged not under the Secrecy Act but under the es-
pionage law. They were tried in camera and sentenced to
jail terms; a court of appeal affirmed that they had acted
with an implied intent to aid a foreign power within the
meaning of the espionage statute.34
The verdicts in the IB affair drew considerable crit-
icism. A commission of inquiry was appointed to consid-
er changes in the Freedom of the Press Act. The revised
law, which came into force in 1978, makes all prosecu-
tion of the press a matter to be decided by the attorney
general. In 1981 a new secrecy act went into effect; it
expands the scope of secrecy and tightens the law with
regard to unauthorized leaks by civil servants.
West Germany: Militant Democracy
A third democracy that has wrestled with the problem
of reconciling freedom of the press and protection of
state secrets is the Federal Republic of Germany. Article
5(1) of West Germany's constitution, the Grundgesetz,
or basic law, affirms the right of the people to unhindered
information, freedom of speech, and freedom of the
press, and it rules out censorship. But public speech, like
all rights of the person, can be limited by general laws
that seek to protect the public interest. The importance
attached to the defense of the democratic order is mani-
fested by West Germany's commitment to the principle
of "militant democracy." Unlike the Weimar Republic,
which is held to have succumbed in part because its
opponents were able to use their civil rights to destroy the
democratic constitution, West Germany asserts the au-
thority to deny freedom to the enemies of freedom. The
principle of militant democracy does not directly touch
upon the protection of official secrets, but it is a signifi-
cant aspect of West Germany's political culture.
According to section 61 of the civil service law, civil
servants are required to keep secret all information ac-
quired in the course of their official duties. A violation of
this provision is punishable with up to five years' im-
prisonment. However, this sanction can be invoked only
if the information involved jeopardizes important public
interests. A similar qualification is attached to the defini-
tion of state secrets-"facts, objects or knowledge that
are accessible only to a limited number of persons and
that must be kept secret from a foreign power in order to
avert the danger of serious damage to the external securi-
ty of the Federal Republic of Germany." The disclosure
of such a secret is a criminal offense if the offender reveals
it to a foreign power, allows it to get into the hands of
unauthorized persons, or publishes it to disadvantage the
nation or favor a foreign power. Again, the disclosure is
punishable only if it creates a danger of serious damage to
the external security of the country. Moreover, the civil
servant incurs neither disciplinary nor criminal liability if
after exhausting all other remedies, such as informing his
superiors or his representative in the legislature, he re-
veals information concerning unconstitutional activities
of his government-activities that undermine the demo-
cratic order or violate treaty-imposed restrictions on
German armaments. is Presumably, this provision would
also protect whistle-blowing on preparations for a war of
aggression, forbidden by the basic law, even though in
the age of preemptive wars it may not be easy to deter-
mine whether an attack on another country constituted
aggressive warfare.
Until 1968 the law concerning treason did not dis-
tinguish between the intentional betrayal committed by
the agent of a foreign power and the disclosure of a state
secret by a journalist. The need for such a distinction was
driven home by the Spiegel affair, which rocked West
Germany in October 1962. In an unprecedented legal
maneuver, the publisher and several leading editors of
the mass-circulation magazine Der Spiegel were arrested
for publishing an article on the state of readiness of the
German armed forces. The article, it was alleged, made
use of classified information, and the persons responsible
for its publication were therefore to be charged with the
crime of treason. Following an outcry of protest all over
the country, this proceeding was aborted. A member of
the Bundestag who was suspected of having given Der
Spiegel a classified document could have been charged
with violating Section 353c of the criminal code, but this
indictment, too, was never pressed.
Section 353c was abolished in 1979. Journalists had
referred to it as the "muzzle paragraph," since it pro-
vided a prison term of three years or a fine for anyone
who communicated or published classified information
and thereby endangered important public interests. A
violation, critics pointed out, was triggered by the very
fact of publishing classified information, whether or not
the information was properly classified or even involved
an important secret. Now modified, the law would reach
a journalist only if he published a classified document
given to him by a civil servant and if he had been formally
informed of his obligation to keep it secret.
Prosecutions under the old law had been extremely
rare; they are even less likely under the new. 16 Moreover,
a journalist could still plead that the information, al-
though classified, concerned an important aspect of pub-
lic life and that its disclosure therefore was justified on
account of the constitutionally guaranteed right of cit-
izens to be informed-as well as by the guarantees of
freedom of speech and press. That was the clear implica-
tion of a supreme court ruling in the aftermath of the
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N/ue'gel affair. It is generally recognized that a judge who
had to weigh the relative importance of these rival public
goods in order to decide the justification of "journalistic
treason" would face an extremely difficult and delicate
task.', To what extent, for example, could an article on
the stationing of middle-range missiles in West Germany
go into details about the location, reach, and power of
such missiles? How much technical, possibly classified,
detail does a journalist need to write intelligently about
these complex and yet highly important issues of foreign
and military policy so that people can form opinions
about them? At what point does a public discussion of
military strategy and tactics in the age of atomic weapons
aid a foreign power, if only by demoralization from
harping on the disastrous consequences of a nuclear
exchange? These questions, of importance for other
countries besides West Germany, await answers.
... when everything is classified,
then nothing is classified, and the sys-
tem becomes one to be disregarded by
the cynical or the careless ..."
Several facts of-American political life greatly compli-
cate matters. There is, first, the ever-present problem of
overclassification. The basic need to withhold from the
public certain kinds of information is generally accepted.
It is elementary, Justice Stewart pointed out in the Pen-
tagon Papers decision, "that the successful conduct of
international diplomacy and the maintenance of an effec-
tive national defense require both confidentiality and
secrecy. Other nations can hardly deal with this Nation
in an atmosphere of mutual trust unless they can be
assured that their confidences will he kept. And within
our executive departments, the development of consid-
ered and intelligent international policies would he im-
possible if those charged with their formulation could
not communicate with each other freely, frankly, and in
confidence. In the area of basic national defense the
frequent need for absolute secrecy is, of course, self-
evident." 3" Yet secrecy has often become an end in itself.
Ever since the beginning of the modern security classi-
fication system in World War 1, bureaucrats have tended
to play it safe and overclassify, prolonging the period of
restriction and placing roadblocks in the way of access.
Some experts-former high officials of the executive
branch-who have testified about this problem before
the Congress have estimated that as much as 75 percent
of the documents now classified do not require protec-
tion against disclosure.ty Such abuse undermines the
credibility of the entire program. To quote Justice Stew-
art again: "For when everything is classified, then noth-
ing is classified, and the system becomes one to he dis-
regarded by the cynical or the careless, and to be
manipulated by those intent on self-protection or self-
promotion."411
Can Democracy Keep Secrets?
A system of classification that lacks integrity is a direct
cause of leaks. Government employees, frustrated by the
amount of secrecy under which they have to operate. feel
justified in leaking or otherwise compromising classified
information. The leaking of the Pentagon Papers to the
press by Daniel Ellsberg is the best-known example of
such a breach of trust, but there have been numerous
other cases where government employees decided to dis-
close important defense or diplomatic information. Was
the information really in need of classification? Did these
disclosures help create a more enlightened citizenry, bet-
ter equipped to judge issues of public policy and select
public officials? These questions are probably somewhat
beside the point. Apart from the exposure of manifest
corruption or illegality, it is difficult to run an orderly
government if each employee can function as the public
conscience and take upon himself the right to disregard
the rules. Individual employees may not know why se-
crecy is important. All too often such disclosures, even
those made with the best of motives, have ruled out a
foreign policy option or jeopardized ongoing policy.
The problem of preventing or tracking down leaks of
classified information by low-level government employ-
ees is extremely difficult. Another complicating element
is the widespread practice by top officials of declassifying
information they want to leak. These authorized leaks
take several forms. The most frequent technique is the
off-the-record press briefing or "backgrounder," which
is filtered to the public under the rubric "according to
informed sources." The purpose may be to float a trial
balloon, testing public reaction, or to justify a certain
policy or fortify one's position against a rival bureaucrat.
High officials can also disclose confidential or classified
information in memoirs published after they leave office.
All of this leads to charges of a double standard and
further weakens confidence in the integrity of the classifi-
cation system. As one critic has put it, probably with only
slight exaggeration: "Authorized leaking makes a mock-
ery of information law because policy-makers enforce
arbitrary criteria against others while being themselves
engaged in systematically releasing self-serving news on a
not-for-attribution basis."4 t
Briefing or Leaking?
Some officials draw a distinction between briefing the
media (a good thing) and leaking to the media (a bad
thing). Others honestly acknowledge the difficulty of
such a differentiation. "You know the difference be-
tween leaking and briefing," James Callaghan, Labour's
Home Secretary, once said. "Briefing is what I do, and
leaking is what you do."42 One can also argue that when
a high-level official engages in instant declassification, he
is merely doing that to which he is entitled by law, for the
authority to classify includes the right to declassify. But
such officials should have some perspective on the results
of such disclosures.
Several attempts to put a criminal sanction on the
communication or publication of classified defense infor-
mation have ended in failure. In 1957 the Commission on
Government Security recommended "that Congress en-
act legislation making it a crime for any person willfully
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to disclose without proper authorization, for any pur-
pose whatever, information classified 'secret' or 'top se-
cret,' knowing, or having reasonable grounds to believe,
such information to have been so classified."41 A bill that
did not require a specific intent to injure the United States
was introduced but failed to win much political support.
Similar proposals were advanced during the attempted
recodification and revision of the federal criminal code in
1973. One of these bills, S.1, made the publication of
national defense information explicitly criminal only in
time of war. The proposal of the Nixon administration,
S. 1400, was more sweeping and, as critics contended,
would have paralyzed most newspaper reporting on na-
tional security affairs.44 Prolonged efforts to work out an
acceptable compromise failed, and the federal criminal
code reform bill finally died in 1982.
Poking through the Files
The Watergate scandal and the attendant abuses in the
name of national security have undoubtedly created
great difficulties for the enactment of legislation to pro-
tect the nation's security interests. Passage of even a
modest proposal-the law to protect the identities of U.S.
intelligence agents-required the expenditure of a lot of
political capital. The United States today denies its intelli-
gence agencies the secrecy granted to physicians, lawyers,
clergymen, grand juries, and income tax returns; it is the
only country in the world that gives foreign intelligence
agencies, not to mention anyone else, a legal license to
poke into the files of its intelligence organizations. The
willingness of our allies' intelligence services to share
their information and the willingness of individuals to
risk their lives and reputations to help us have seriously
diminished, yet hills to exempt the intelligence agencies
from the coverage of the Freedom of Information Act
have made no headway. The public has developed a
right-to-know mentality, and journalists consider any
information, no matter how sensitive, fair game. Never-
theless, it would be the course of political prudence to
consider and take action on the thorny problem of pro-
tecting national defense secrets in a period of relative
domestic calm-before a major disaster whips up hys-
teria and leads to an overreaction.
Two types of conduct that are potentially damaging to
national security are not explicitly covered by existing
law. The first is the unauthorized disclosure by present or
former government employees of classified defense infor-
mation acquired during the course of their employment.
Such disclosure is now criminal only if made to an agent
of a foreign power or a member of a communist organi-
zation or if it involves a narrow range of cryptographic
information or data concerning atomic energy. The es-
pionage statutes that prohibit the disclosure of national
defense information to anyone not authorized to receive
it lack a scienter requirement and generally are so broad-
ly phrased that they are unlikely to pass the test of
constitutionality.
A new, more comprehensive statute aimed at the unau-
thorized disclosure by government employees of defense
information should encompass all information properly
classified secret or top secret. Those charged with violat-
ing such a law should be able to challenge in court the
propriety of classification. However, this review should
not be de nova but should be limited to a determination
by the judge that the government, acting through an
authorized official, had correctly applied its own rules
concerning the protection of sensitive defense informa-
tion. The judge might also be given the right, as in West
German law, to quash prosecution if the classified infor-
mation concerned illegal activities.
Until 1980 the government often hesitated to press
such prosecutions lest defendants, invoking the discovery
and other rights under the federal rules of criminal proce-
dure, obtain additional sensitive material and disclose it
in the courtroom, thereby compounding the injury done
national security by confirming the information's au-
thenticity and significance. Prosecutors viewed this tactic
as similar to blackmail because it left them the choice of
augmenting the initial damage or abandoning prosecu-
tion. This "graymail" problem was largely solved by the
enactment of the Classified Information Procedures Act
in October 1980.45 Under this law, a judge can hold in
camera pretrial hearings on the use of classified informa-
tion, and he can prevent the disclosure of classified data
given the defendant by the government.
It would probably be unwise, as some have suggested,
to grant judges the unfettered discretion to decide
whether the information, though properly classified,
concerned an important aspect of public life and had
such significance for public debate that its disclosure was
in the national interest. Judges have traditionally shied
away from encroaching on the executive's control over
foreign and military policy, and this reluctance appears
especially justified when the issue is the determination of
a disclosure's probable impact on the nation's security.
Such determinations, like all executive decisions con-
cerning foreign policy, Chief Justice Burger correctly
pointed out in the Pentagon Papers case, "are delicate,
complex, and involve large elements of prophecy. They
are and should be undertaken only by those directly
responsible to the people whose welfare they advance or
imperil. They are decisions of a kind for which the judici-
ary has neither aptitude, facilities nor responsibility and
which has long been held to belong in the domain of
political power not subject to judicial intrusion or inqui-
ry."46 A test of the factual basis of the executive's claim
of risk or damage would involve a vast and complicated
area of facts and contingencies relating to foreign policy
that the judiciary cannot be expected to master.
Chronic Overclassification
A statute criminalizing government employees' unau-
thorized disclosure of classified defense information will
be workable only if the executive branch makes substan-
tial progress in controlling the chronic problem of over-
classification. Then it will be possible to argue that the
revelation of secret or top-secret defense information
constitutes the kind of damage to the security of the
nation that justifies criminal penalties. To safeguard
against frivolous prosecution, both the secretary of the
department concerned and the attorney general should
be required to authorize prosecution. Finally, to answer
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the charge of selective law enforcement, public officials
will have to restrain their habit of engaging in instant
declassification. All this, undoubtedly, is a tall order and
will require considerable change in current practice.
However, the harm caused by certain kinds of leaks,
currently left unpunished, is great enough to call for some
special efforts. Moreover, failure to protect secrecy can
result, paradoxically, in an increase in secrecy: "If the
legal order legitimates the view that respect for secrecy is
only a matter of political commitment, the likely re-
sponse of the decision-makers will be to make secrets
available to only a few trusted subordinates. Thus, the
law's failure to give weight to security considerations will
augment the tendency to centralize power into fewer
hands."47
The second type of conduct that should be covered by
new law is the publication of leaked national defense
... most segments of the media today
treat as a scoop any information, no
matter how sensitive, that comes their
way.
information. Currently, the only publication that is clear-
ly prohibited aims specifically at informing the enemy in
time of war, or has the main purpose of identifying
intelligence agents, or concerns codes, a narrow class of
cryptographic information, and restricted data on atom-
ic energy. The press in a democratic society plays an
extremely important role in informing the public and
lawmakers about public policy, a role as essential in
matters of foreign policy as in other areas of national life.
And yet our society also has a clear need to protect the
secrecy of certain types of defense information. Should
the press be entitled to disregard this need once it has
managed to get hold of such sensitive information? The
answer that Britain's Franks Committee fashioned bears
repeating: "If a civil servant has failed to protect a secret,
there is no justification for the view that a citizen who
thereby comes into possession of that secret, and who
knows that it is a secret, should be free to compound the
failure of the civil servant, and to harm the nation, by
passing on the secret as he pleases." Journalists, too, are
citizens; they should have the same obligations.
Accepting this view in principle, Professors Edgar and
Schmidt have suggested that Congress set strict limits to
prohibitions of unauthorized disclosure and publication
of national defense information. "Only very narrowly
drawn categories of defense information of great security
significance and, in most cases, little import for public
debate, should be prohibited from public revelation. In-
formation about cryptographic techniques, intelligence-
gathering operations, the design of secret and vital weap-
ons systems, nuclear armaments, and perhaps other nar-
row and concrete categories of defense or intelligence
information are appropriate subjects, in our opinion, for
prohibitions on peacetime press disclosure. "4K But could
Congress formulate an adequate catalogue of protected
defense information? Is Congress any better equipped
than the judiciary to foresee the possible harm that could
come from the publication of certain kinds of secrets?
Could Congress make a list of prohibited items that
would enable journalists, prosecutors, judges, and juries
to know with certainty what may not be published? The
danger is that any such list would be either too specific
and therefore lacking in flexibility or so general that it left
considerable ambiguity of interpretation.
Defenders of the press point to the Bay of Pigs episode
in 1961 as the kind of case where the press should have
gone ahead and published whatever it knew to prevent a
disastrous policy failure. More recently, the press has
published details about CIA covert operations in Central
America, especially against Nicaragua. Presumably, the
journalists and editors responsible for these articles felt
entitled to publicize these operations because they ques-
tioned their wisdom. Information about this covert effort
is said to have come from intelligence officials and appar-
ently also from those in the Congress, the Defense De-
partment, and the State Department who are worried
about the CIA's role in Central America. "Some officials
fear," the New York Times wrote in December 1982,
,.that the activities may aggravate chronic political in-
stability in the region and lead to eventual direct military
involvement there."49 It is possible that the CIA deliber-
ately revealed information about these covert operations
to exert pressure against Nicaragua. On the other hand,
some of the information may have been leaked by people
in the Reagan administration who are critical of this
policy. If the latter, should the press be free to compound
the impact of a lack of cohesion among decision makers
by publicizing the leaked information? Does the impor-
tance of public debate on this issue justify disclosure of
validly classified information? Who should decide?
Permanent Adversaries
The problems raised would be less serious if one could
be sure that the media were prepared to assume responsi-
bility for protecting legitimate needs of national security.
Unfortunately, this assumption is not universally valid.
The United States was able to fight World War II without
compulsory censorship, but the consensus on goals be-
tween government and press that made this possible no
longer exists. The willingness of the media to publish
leaks about such delicate issues as the Glomar Explorer
mission to lift a sunken Russian submarine or U.S. rela-
tions with Pakistan and Jordan in several recent crises
indicates that most segments of the media today treat as a
scoop any information, no matter how sensitive, that
comes their way. They are no longer merely occasional
critics of government but permanent adversaries. What-
ever little restraint national newspapers like the New
York Times or the Washington Post are still prepared to
practice cannot be expected from papers like Ramparts,
the Madison Press Connection, or the Daily Californian,
all of which question the very need for national secrets.
The difficulty of obtaining the voluntary cooperation
of the press in protecting sensitive defense information
Can Democracy Keep Secrets?
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was illustrated by a recent episode in Washington. On
December 14, 1982, the Defense Department scheduled
a special press briefing about Soviet military capabilities.
The briefing was designed to convince reporters that the
government had solid evidence of the grave military
threat to the United States and its allies in Europe posed
by the Soviet Union's growing military might. The thir-
teen reporters present were asked to sign a secrecy agree-
ment, but none were willing to do so. The original intent,
it appears, had been to protect merely the sources of the
information-photographs taken by high-flying Ameri-
can reconnaissance aircraft or satellites, for example-
but the wording of the agreement that was in fact given to
the reporters was more sweeping and would have prohib-
ited all dissemination of the information. For the New
York Tunes, apparently, any kind of restraint was un-
acceptable. The paper declined to send a correspondent
to the briefing; its managing editor, Seymour Topping,
explained the decision by saving, "The Times does not
enter agreements that bar a reporter from sharing infor-
mation with readers or responsible editors."S0
To create a new political climate regarding the treat-
ment by the press of U.S. foreign and military policy, I
favor legislation prohibiting the publication of defense
information classified secret or top secret. The media
should be vigorous in airing general issues of policy, but
they should not presume to judge what kind of data
require protection against disclosure. That decision must
be made by those responsible and accountable for foreign
policy, and their judgment, unless patently arbitrary,
should he binding. The only exceptions to this rule
should be those mentioned earlier in connection with the
disclosure of classified information by present or former
government employees. Recourse to prior restraint by an
injunction against publication should be limited to situa-
tions of reckless disregard of serious injury to the nation-
al security, certified as "journalistic treason" by a com-
mittee of experts. Such a committee, to be appointed in
equal parts by the Congress and the president, should he
composed of distinguished former foreign policy, de-
fense, and intelligence officials with full access to classi-
fied information. Their recommendations would not be
legally binding, but they would help judges determine the
likely consequences of a breach of secrecy.' I There is
reason to believe that such legislation would not conflict
with the First Amendment, which does not require an
unlimited right of public speech and publication.
There is also the problem of unclassified technical and
scientific data of potential military value to the Soviet
Union and other foreign nations. Defense and intelli-
gence officials have warned that the Soviets for some time
have conducted a highly orchestrated effort to gather
technical information to enhance their military capabili-
ties. The problem here again is to avoid all-or-nothing
approaches. The unfettered exchange of ideas is an im-
portant element in the scientific edge that this country
enjoys over the Soviet Union in most fields of study; a
continuation of that freedom of communication in scien-
tific research is essential to further progress. However,
some screening of publications dealing with devices and
technical plans that can quickly be applied to military or
industrial use is perhaps indicated. It might be possible to
use the British D-notice system or to develop a modified
version of the voluntary system of control that func-
tioned so well in this country during World War 11.
Beginning in 1941, the government issued the Code of
Wartime Practices, which identified information that
might be helpful to the enemy and should not be pub-
lished without prior consultation. Compliance with this
system was voluntary, yet there were no instances of
intentional violation. The major factor in the success of
this program apparently was that it was operated in a
manner that won the respect of the press. S2 Could the
scientific community today be persuaded to muster a
similar spirit of cooperation and accept the need for some
curb on the free flow of unclassified scientific informa-
tion? That is an open question.
Legal systems work when the law is perceived as fair,
just, and necessary. In the final analysis, therefore, the
actual results of the legislation proposed here will depend
on basic political attitudes and shared values that can be
influenced by law-and most men respect that which is
legal. But the results will also depend on nonlegal factors.
Britain's D-notice system works because there exists a
reservoir of basic trust between government and the
governed, including the media. Whether such a consen-
sus on common national aims can be restored in the
United States will have as much significance for the better
protection of the nation's secrets as the enactment of new
legislation.
References
1. 40 Stat. 217 (1917).
2. 64 Stat. 1003 (1950).
3. For a careful analysis of the legislative background of sec-
tions 794(a) and 794(6), see Harold Edgar and Benno C.
Schmidt, Jr., "The Espionage Statutes and Publication of
Defense Information" in Columbia Law Review, LXXIII
( 1973), pp. 991-998. My discussion of the espionage stat-
utes draws extensively on this excellent study. For a shorter
and less technical version of this monograph, see Benno C.
Schmidt, Jr., "The American Espionage Statutes and Pub-
lication of Defense Information" in Secrecy and Foreign
Policy, edited by Thomas M. Franck and Edward Weiss-
hand (New York, 1974), pp. 179-201.
4. Some publications, such as Counter Spy, may have as their
aim the infliction of damage on U.S. foreign policy, but
section 794(6) will not reach them except, at best, in time of
war. Whether it would be possible to prove the requisite
intent to aid the enemy or whether the presence of other
intents, such as informing the public, would be exculpatory
is an open question. To prevent these kinds of complica-
tions, section 301(c) of the Intelligence Identities Protection
Act of 1982 (Public Law 97-200, 96 Stat. 122, 50 U.S.C.
421) uses in place of the intent standard a supposedly more
objective standard requiring that the disclosure be "in the
course of a pattern of activities intended to identify and
expose covert agents and with reason to believe that such
Policy Review
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activities would impair or impede the foreign intelligence
activities of the United States."
S. 112 U.S. 19 (1941).
~. Ibid., pp. 28-29. Among the factors to be considered, an-
other court ruled in 1962, is whether the information in-
Volved is classified. United States v. Soblen, 301 F.2d 236
(2d ('it.), cert. denied, 370 U.S. 944 (1962). But how im-
portant should the mere fact of classification be in estab-
lishing that the information concerned the national de-
tcnse? Should the jury regard only information properly
k, lassit cd as defense related?
151 F.2d 813 (2d Cir. 1945), cert. denied, 328 U.S. 833
(1946).
8. Gor?t v. United States, 312 U.S. 19, 27 (1941).
1). A reading of the culpability standard that stresses what the
obtainer of the information thinks will be its principal use
would reconcile the broad language of the statute with
what we know about Congress's objection to a blanket
prohibition on publication. An opinion issued in 1942 by
Attorney General Francis Biddle held the transfer of defense
information to our European allies under the Lend-Lease
program not to constitute a violation of the espionage
statutes: "Under the circumstances here involved, the pri-
mary advantage sought is that of the United States itself; the
,(interring of an advantage upon an allied nation is but a
means to that end." 40 Opinions of the Attorney General
!SO ( 1942), cited by Edgar and Schmidt, op. cit., p. 998.
In. 117 F.2d 546 (D.('. (:ir. 1962), cert. denied, 374 U.S. 856
(1963).
I I. 6o Star. 766 (1946), as amended 68 Star. 958 (1954).
12. United States r. The Progressive, 467 F. Supp. 990 (1979).
I ;. United States v. Marchetti, 466 F.2d 1309 (4th Cir. 1972),
cert. denied, 409 U.S. 1063 (1972).
14. Knopf v. Colby, 509 F.2d 1362 (4th Cir. 1975).
I S.Snepp r. United States, 444 U.S. 507 (1980).
16. (1. A. O. Sulzberger, Jr., "Guidelines Laid Out on Secrecy
Breaks" in the New York Times, December 4, 1980; Mary
Thornton, "Reagan Tightening the Rules on Leaking" in
the Washington Post, September 17, 1981.
17. Robert Pear, "President Orders Curb on Handling of Clas-
sified Data" in the New York Times, March 12, 1983.
18. For a discussion of the rationale of the new presidential
directive, see Daniel B. Silver, "Safeguarding National Se-
curity: A Defense of Reagan's Directive," Intelligence Re-
port, Vol. V, No. 6 (June 1983), pp. 1-2.
19. New York Times Company v. United States, 403 U.S. 713
(1971).
20. Ibid., p. 737.
21. Ibid., p. 752.
22. Ibid., p. 759.
23. Ibid., p. 726, citing Near v. Minnesota, 283 U.S. 697, 716
(1931).
24. Ibid., p. 731.
25. Ibid., p. 749.
26. Quoted in Anthony Sampson, "Secrecy, News Manage-
ment, and the British Press" in Franck and Weissband, op.
cit., p. 224.
27. Ibid., p. 225. On the D-notice system, see also James Mi-
chael, The Politics of Secrecy (Harmondsworth, 1982), pp.
86-90.
28. Great Britain, The Civil Service: Report of the Committee
(Lord Fulton, chairman), Cmnd. 3638 (1968).
Can Democracy Keep Secrets?
29. Great Britain, Home Office, Report of the Departmental
Committee on Section 2 of the Official Secrets Act 1911,
Lord Franks, Cmnd. 5104 (1972), Vol. I, p. 40.
30. Ibid., p. 85.
31. Michael, op. cit., p. 9.
32. Edward Pearce, "Old Strengths, Discovered Anew: After
the Falklands," Encounter (September-October 1982), p.
38.
313. Quoted in Michael, op. cit., p. 151.
.34. Ibid., pp. 149-152.
35. This was the holding of the Federal Constitutional Court in
1970. See M. M. Bullinger, "Western Germany" in Admin-
istrative Secrecy in Developed Countries, edited by Donald
C. Rowat (New York, 1979), p. 233.
36. Cf. Manfred Mohrenschlager, "Das siebzehnte Strafrechts-
anderungsgesetz,"Juristenzeitung, XXXV (1980), 165. See
Heinrich Laufh6tter, "Staatsgeheimnis and Regierungsge-
heimnis" in Goltdammer's Archiv fur Strafrecht, LII
(1974), pp. 52-60.
37. Cf. Peter Lerche, "Geheimschutz and Offentlichkeitsin-
teresse" in Bundesministerium des Innern, comp., Ver-
fassungsschutz and Rechtsstaat (Cologne, 1981), pp.
117-132.
38. New York Times Company v. United States, 403 U.S. 713,
728 (1971).
39. See the essay by Representative William S. Moorhead of the
House Committee on Government Operations, "Opera-
tion and Reform of the Classification System in the United
States" in Franck and Weissband, op. cit., pp. 87-113.
40. New York Times Company v. United States, 403 U.S. 713,
729 (1971).
41. Alan M. Katz, "Government Information Leaks and the
First Amendment," California Law Review, LXIV (1976),
p. 110.
42. Cited by Stanley de Smith, "Official Secrecy and External
Relations in Britain: The Law and Its Context" in Franck
and Weissband, op. cit., p. 318.
43. Report of the Commission on Government Security (Wash-
ington, D.C., 1957), p. 620.
44. Cf. Edgar and Schmidt, op. cit., pp. 1079-1083.
45. Public Law 96-456, October 15, 1980, 94 Stat. 2025, 18
U.S.C. Appendix 84.
46. Chicago and Southern Air Lines v. Waterman Steamship
Corporation, 333 U.S. 103, 111 (1948), cited by justice
Burger in New York Times Company v. United States, 403
U.S. 713, 758 (1971).
47. U.S. Congress, Subcommittee on Legislation of the House
Permanent Select Committee on Intelligence, Espionage
Laws and Leaks. 96th Congress, 1st less., hearing, January
25, 1979, p. 114.
48. Loc. cit.
49. See, e.g., Philip Taubman, "C.I.A. Is Making a Special
Target of Latin Region" in the New York Times, December
4, 1982.
50. Philip Taubman, "Reporters Balk at Secrecy Pledge" in the
New York Times, December 15, 1982.
51. For an illuminating discussion of this suggestion in a Ger-
man context, see Gerd Ruge, ed., Landesverrat und Presse-
freiheit: Fin Protokoll (Cologne, 1963), pp. 11.3-114.
52. Cf. "Developments in the Law: The National Security In-
terest and Civil Liberties," Harvard Law Review, LXXXV
(1972), p. 1194.
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