FIFTY YEARS UNDER LAW

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 06863740
• Release Decision: RIPPUB
• Original Classification: U
• Document Page Count: 203
• Document Creation Date: July 13, 2023
• Document Release Date: May 3, 2022
• Case Number: F-2018-02028
• Publication Date: September 1, 1997

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Fifty Years Under Law
1947- 1997
September 1997
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Fifty Years Under Law
1947-1997
Office of General Counsel
and
Center for the Study of Intelligence
September 1997
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Acknowledgments
Thanks go to Brian Late11, Director of the Center for the Study of
Intelligence; Scott Koch of the History Staff; Paul Arnold, who serves
as Editor in Chief of Studies in Intelligence;
of the Office of General Counsel; the Office
of Support Services Multi-Media Production Group; Emma Sullivan and
the Historical Intelligence Collection Staff; and all of the Agency's
outstanding printing and design professionals who worked on this
anthology, for their superior efforts in putting this publication together
in a very short period of time.
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Contents
Page
Introduction iii
"Executive Privilege in the Field of Intelligence," Lawrence Houston 1
(Fall 1958, Volume 2/4)
"Impunity of Agents in International Law," M.C. Miskovsky 15
(Spring 1961: Volume 5/2)
"The Protection of Intelligence Data," John D. Morrison, Jr. 29
(Spring 1967, Volume 11/2)
"CIA, The Courts and Executive Privilege," Lawrence Houston 39
(Winter 1973, Volume 17/4)
"The Marchetti Case. New Case Law," John S. Warner 43
. (Spring 1977, Volume 21/1)
"The CIA and the Law. The Evolving Role of the CIA's General Counsel," 55
Daniel B. Silver (Summer 1981, Volume 25/2)
"National Security and the First Amendment," John S. Warner 61
' (Spring 1983, Volume 27/1)
"Intelligence Gathering and the Law," Benjamin R. Civiletti 91
(Summer 1983, Volume 27/2)
"Commentary on 'Intelligence Gathering and the Law' "by John S. Warner 115
(Summer 1983, Volume 27/2)
"Disclosure Problems in Espionage Prosecutions," George W. Clarke 119
(Spring 1984, Volume 28/1)
"The Supreme Court and the 'Intelligence Source' "by Louis J. Dube and 131
Launie M. Ziebell (Winter 1986, Volume 30/4) .
"Lawrence R. Houston � A Biography," Gary M. Breneman 149
(Spnng 1986, Volume 30/1)
"Presidential War Powers," Fred F. Manget (Summer 1987, Volume 31/2) 169
"Intelligence and the Rise of Judicial Intervention," Fred F. Manget 183
(Spring 1995, Volume 39/1)
"Covert Action, Loss of Life, and the Prohibition on Assassination, 191
1976-96," Jonathan M. Fredman (1996, Volume 40/2)
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Fifty Years Under Law
Introduction
Non sub homine sed sub deo et lege .
("It is not by men but by God and the law [that we are governed]")
�Inscription at Harvard Law School
The Central Intelligence Agency is a creature of law. Fifty years ago, it was
created by an act of Congress. Two years later, Congress passed a second
act setting out the Agency's special authorities and administrative rules.
Today, laws affect every Agency activity. The Agency operates under the
Constitution, especially the Fourth Amendment. It spends money according
to federal appropriations laws. It derives authorization for expenditures
from yearly intelligence authorization acts. It collects intelligence under
extensive legal rules of engagement. The identities of its covert employees
are specifically protected by federal criminal statutes. It manages informa=
tion subject to federal information and privacy laws. It handles waste man-
agement under environmental regulations. The retirement of its employees,
the protection of its secrets, the limits of its operations, even its relation-
ships with other federal agencies, are all governed by laws.
In the beginning, there were fewer laws and thus fewer lawyers. The Office
of General Counsel has grown in numbers and presence throughout the
Agency since Larry Houston began his tenure as the first General Counsel.
Growth came with the greater complexity and number of laws that applied
to the Agency and increased Congressional oversight that began in the mid-
1970s. The General Counsel has become not only a privy counselor to the
Director of Central Intelligence in his intelligence community and CIA
roles, but also the manager of a large law firm of more than 100 personnel
which delivers legal services to a multibillion-dollar organization. This
year, for the first time, the General Counsel Will be appointed by the
President and confirmed by the Senate.
At present, the Office of General Counsel has attorneys in four mainline (b)(3)
divisions�Litigation, Administrative Law, Intelligence Support, and
Logistics and Procurement Divisions. There is also an Operations Division
composed of attorneys assigned on rotation to operating components, such
as the area divisions of the Directorate of Operations and the Counterterror-
ist, Counterintelligence, and Crime and Narcotics Centers. The Office of
General Counsel also has attorneys serving in the front offices of the
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(
Directorates of Intelligence and Science and Technology, the National
Reconnaissance Office, the Office of Personnel Security, the Community
Management Staff, and the Arms Control Intelligence Staff. In addition, the
Legislation Group in the Office of Congressional Affairs is staffed by attor-
neys who perform a legislative counsel function for the Agency. Further, a
Law Enforcement Coordination Office was established recently within the
Office of General Counsel to handle legal issues related to the Agency's
support of law enforcement agencies.
The interaction of the Agency with American jurisprudence has created a
body of law that has become coherent enough to be taught as a subject in
law schools as diverse as Georgetown, Yale, Virginia, Duke, and Pennsyl-
vania. Intelligence and national security law is now a well-established aca-
demic specialty that has resulted in at least two textbooks,' several centers,
and an ongoing exchange of attorneys from the Office of General Counsel
who teach adjunct courses in the subject at local law,schools.
That interest in the law and its relation to intelligence led a number of
authors to write articles, which were published in Studies in Intelligence
over the last 40 years and which are now gathered in this collection. Studies
in Intelligence is the in-house journal of articles on the theoretical, doctri-
nal, operational, and historical aspects of intelligence that is now published
by the Center for the Study of Intelligence at CIA. The articles republished
in this collection range from one written by the first General Counsel in
1958 about executive privilege to one published last year on the assassina-
tion prohibition in Executive Order 12333�both topics of continued and
current legal interest. Former General Counsel John Warner contributed an
article on national security and the First Amendment. Other topics include .
presidential war powers, espionage prosecutions, and a biography of the
first General Counsel. Former Attorney General Benjamin Civiletti's article
on intelligence gathering and the law is included, as are articles on the
evolving role of the General Counsel and the oversight of some intelligence
activities by the federal judiciary.
In all of these papers, there is a common theme, sometimes unspoken but
always clear: CIA was created by law, authorized to act by law, and
bounded by law. Lawyers may disagree on what the law is (and they fre-
quently do), but there is no disagreement that CIA must conduct all of its
activities according to law.
Democracies are uncomfortable with secret intelligence activities, espe-
cially in the American model with a free press and open debate of all issues.
Sir William Stephenson (the man called "Intrepid") said, "We are rightly
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repelled by secrecy; it is a potential threat to democratic principle and free
government... .So there is the conundrum: How can we wield the weapons
of secrecy without damage to ourselves: How can we preserve secrecy
without endangering constitutional law and individual guarantees of
freedom?".
The rule of law reconciles this clash of seeming opposites and reaffirms the
basic values and principles of American government, even when it must
operate in the shadows and on the night watch. How intelligence law has
developed in response to the challenging and dangerous post-World War II
conditions is described in these articles by lawyers who actually helped
make it. It is a highly interesting story and a fitting commemoration of
CIA's 50 years of operation under the rule of law.
Michael J. ()Neil
.Acting General Counsel
...
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1. "Executive Privilege in the Field of Intelligence," Lawrence Houston
(Fall 1958, Volume 2/4)
A review of legal precedents for
protecting sensitive informa-
tion from disclosure in the
courts and Congress, with par-
ticular reference to Central In-
telligence privileges.
EXECUTIVE PRIVILEGE IN 'rub FIELD
OF INTELLIGENCE
Lawrence R. Houston
Recent agitation in congressional and newspaper circles
agaiust "secrecy in government" has focused attention on in-
formation security measures in the Executive Branch. The
courts, too, have declared in recent months that information
used by the government in preparing criminal prosecutions
and even some administrative proceedings must be divulged,
at least in part, as "one of the fundamentals of fair play." In
this atmosphere, the intelligence officer may reflect on the risk
he runs of being caught between the upper and nether mill-
stones of congressional or ,court demands on the one hand and
the intelligence organization's requirement for secrecy on the
other.
Actually, the problem of demands for the disclosure of infor-
mation which the government considers confidential is not a
new one, as can be seen from the history of the Executive
Branch's struggles to withhold information from the courts and
Congress. The Executive has based itself in these struggles on
the doctrine of the separation of powers among the three
branches of government, which holds that no one of the
branches shall encroach upon the others.
The Separation of Powers
Demands for the disclosure of information'held by the Execu-
tive have been made by the courts and by the Congress since
the early days of the republic. On the other hand, the very
First Congress recognized, more than a year prior to the, ratifi-
Communist Party v Subversive Activities Control Board; 'U.S. Court
of Appeals, District of Columbia Circuit, decided 9 January 1958.
Al
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1. (Continued)
Executive Privilege and Intelligence
cation of the Bill of Rights, that some of the information held
by the Executive ought not to be divulged. An act passed on
1 July 1790 concerning "the means of intercourse between the
United States and foreign nations" provided for the settlement
of certain expenditures which in the judgment of the President
should not be made public.2 During his first term of office
President Washington, anxious to maintain close relations with
Congress, on several occasions passed information to the Con-
gress with the warning that it not be publicized. In a special
message dated 12 January 1790, for example, he wrote:
I conceive that an unreserved but a confidential communica-
tion of all the papers relative to the recent negotiations with
some of the Southern Tribes of Indians is indispensibly requisite
for the information of Congress. I am persuaded that they
will effectually prevent either transcripts or publications of all
such circumstances as might be injurious to the public inter-
ests.'
. Two years later, in March 1792, a House resolution empow-
ered a committee "to call for such persons, papers, and records
as may be necessary to assist their inquiries" into Executive
Branch actions with respect to a military expedition under
Major General St. Clair. The president did not question the
authority of the House, but wished to be careful in the matter
because of the precedent it might set. He discussed the prob-
lem with his cabinet, and they came to the conclusion:
First, that the House was an inquest and therefore might
institute inquiries. Second, that it might call for papers gen-
erally. Third, that the Executive ought to communicate such
papers as the public good would permit and ought to refuse
those the clisrlos-are of which would injure the public: Conse-
quently were to exercise a discretion. Fourth, that neither the
committee nor the House had a right to call on the Head of
a Department, who and whose papers were under the Presi-
dent alone: but that the committee should instruct their chair-
man to move the House to address the President.'
By 1794 President Washington, then in his second term,
began to show less liberality ,in divulging information to Con-
gress, for on 26 February of that year he sent a message to the
Senate stating that "after an examination of [certain corre-
' Richardson, Messages and Papers of the Presidents, 2283.
3 1 id. 63.
'Writings of Thomas Jefferson, 303405.
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1. (Continued)
Executive Privilege and intelligence
spondence] I directed copies and translations to be made except
in those particulars which, in my judgment, for public consid-
eration, ought not be communicated." 5 Two years later, on 30
March 1796, he transmitted to the House his famous refusal to
divulge certain information requested by the House in connec-
tion with the Jay Treaty. In this treaty, many people be-
lieved, the young republic did not get enough concessions from
the British, and the Pedenlists who supported it had become
the target of popular resentment. Washington replied as fol-
lows to a House resolution:
I trust that no part of my conduct has ever indicated a 4is-
position to withhold any information which the Constitution
has enjoined upon the President as a duty to give, or which
could be required of him by either House of Congress as a
right. . . The matter of foreign negotiations . requires cau-
tion, and their success must often depend on secrecy; and
even when brought to a conclusion, a full disclosure of all the
measures, demands, or eventual concessions which may have
been proposed or contemplated would be extremely impolitic.
Pointing out that he had been a member of the general con-
vention and therefore "knew the principles on which the Con-
stitution was formed," Washington concluded that since "it is
essential to the due administration of the government that the
boundaries fixed by the Constitution between the different De-
partments should be preserved, a just regard to the Constitu-
tion and to the duty of my office under all circumstances of
this case forbids the compliance with your request." 6
Thus during Washington's administration the doctrine of
the separation of powers came to provide the basis for execu-
tive privilege in withholding information. This doctrine, not
specifically enunciated in the Constitution, emerged from de-
cisions taken on specific political situations which arose during
the first years of the republic, as the same men who wrote the
Constitution interpreted it in such ways as they thought pro-
moted its intended ends. In this way it was established that
the Executive Branch of the Government has within its control
certain types of executive documents which the Legislature
cannot dislodge no matter how great the demand. The Execu-
tive Branch can be asked for documents, but should exercise
5 1 Richardson, op. cit. supra, note 2, 144. Italics supplied.
4 1 id. 186.
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1. (Continued)
Executive Privilege and Intelligence
discretion as to whether their rele_ase would serve a public good
or be contrary to the public interest.
The Judiciary also recognized, as early as 1803, the independ-
ence of the Executive Branch and its ability to control its own
affairs. Chief Justice Marshall wrote: "The province of the
court is, solely, to decide on the rights of individuals, not to
inquire how the Executive, or executive officers, perform duties
in which they have a discretion. Questions in this nature
political, or which are, by the Constitution and laws, submitted
to the Executive, can never be made in this court." 7
It is notable that this executive privilege was applied in the
congressional cases cited above to the President's responsi)Dility
for foreign affairs. Under the Continental Congress, the De-
partment of Foreign Affairs had been almost completely subject
to congressional direction. Every member of the Congress was
entitled to see all records of the Department, including secret
matters. But after the Constitution was written, and pur-
suant to its grand design based on the separation of powers,
Congress in 1789 subordinated the Department of Foreign
Affairs to the Executive Branch and provided that its Secretary
should have custody and charge of all records and papers in the
Department. In 1816 the Senate Foreign Relations Committee
declared that the "President is the Constitutional representa-
tive of the United States with regard to foreign matters" and
that the nature of transactions with foreign nations "requires
caution and success frequently depends on secrecy and dis-
patch."
Precedent in Intelligence Cases ,
Intelligence activities, intimately linked with foreign policy,
played their part in the evolution of the Executive Branch's
position on disclosure of information. In 1801 Congress in-
terested itself in the expenditures of various Executive Depart-
ments and instituted an inquiry "as to the unauthorized dis-
bursement of public funds." In reply to charges that the War
Department expended funds for secret service not authorized
by law, Oliver Wolcott (Comptroller of the United States
1791-1795; Secretary of the Treasury 1795-1800) gave a clear
exposition of the accounting requirements of intelligence which
is applicable today:
7 Marbury v Madison, 1 Cranch 137 (1803).
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1. (Continued)
Executive Privilege ,and Intelligence
I never doubted for one instant that such expenditures were
lawful, and that the principle should now be questioned has
excited a degree of astonishment in my mind at least equal to
the "surpnse" of the Committee.
Is it then seriously asserted that in the War and Navy De-
partments � establishments which from their nature presup-
pose an actual or probable state of war, which are designed to
protect our country against enemies �that the precise object
of every expenditure must be published? Upon what principle
are our Generals and Commanders to be deprived of powers
which are sanctioned by universal usage and expressly rec-
ognized as lawful by all writers of the Law of Nations? If one
of our Naval Commanders now in the Mediterranean should
expend a few hundred dollars for intelligence respecting ;the
force of his enemy or the measures meditated by him, ought
the present Administration to disnilow the charge, or publish
the source from which the intelligence was derived? Is it not
equivalent to a publication to leave in a public office of ac-
counts a document explaining all circumstances relating to a
payment? Ought the truth be concealed by allowing fictitious
accounts? Could a more effectual mode of preventing abuses
be devised than to establish it as a rule that all confidential
expenditures should be ascertained to the satisfaction of the
Chief Magistrate of our country, that his express sanction
should be obtained, and that the amount of all such expendi-
tures should be referred to a distinct account in the Public
Records? 8
The statute referred to in the debates was an Act of Con-
gress passed on 9 February 1793 which gave the President au-
thority, if the public interest required, to account for money
drawn from the Treasury for the purpose of "intercourse with
foreign nations" simply by his own certification or that of the
Secretary of State. Actually, this statute reaffirmed the similar
legislation of 1790 providing for the settlement of certain ex-
penditures which, in the judgment of the President, ought not
be made public.9 The substance of these Acts was revived and
continued in later legislation, and President Polk utilized it in
1846 in refusing to accede to a House resolution requesting an
accounting of Daniel Webster's expenses as Secretary of State
in the previous administration.
8 Control of Federal Expenditures, A Documentary History 1775-1894, '
Institute for Government Record of the Brookings Institution, pp.
329-330. Punctuation modernized.
9 Richardson, supra, note 2.
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1. (Continued)
Executive Privilege and Intelligence
In 1842 Webster had negotiated an agreement with the Brit-
ish representative, Lord Ashburton, on the long-disputed
boundary of Maine. To make the treaty more palatable to
the public and enhance its chances of ratification in the Senate,
Webster had spent money out of "secret service funds" to carry
on favorable propaganda in the religious press of Maine. Sena-
tor Benton termed this practice a "shame and an injury . . . a
solemn bamboozlement." A Congressional investigation fol-
lowed, during the course of which the request was levied upon
President Polk.
President Polk based his refusal to comply on the statutes
which gave the President discretionary authority to withhold
details on how money was spent. He supported his predeces-
sor's determination that the expenditure should not be made
public, asserting that if not "a matter of strict duty, it would
certainly be a safe general rule that this should not be done."
In his message to Congress he acknowledged the "strong and
correct public feeling throughout the country against secrecy of
any kind in the administration of the Government" but argued
that "emergencies may arise in which it becomes absolutely
necessary for the public safety or public good to make expendi-
tures the very object of which would be defeated by publicity."
He pointed out as an example that in time of war or impending
danger it may be necessary to "employ individuals for the pur-
pose of obtaining information or rendering other important
services who could never be prevailed upon to act if they had
the least apprehension that their names or their agency would
in any contingency be divulged." 10
The non-disclosure of information relating to intelligence,
was tested rather vigorously in several instances during the
Civil War, and these tests established a strong precedent in
favor of the inviolability of intelligence activities. Brigadier
General G. M. Dodge, who conducted a number of intelligence
activities in the West with considerable results, became the ob-
ject of relentless criticism for his financing methods. He
refused obdurately to break the confidence of his agents by
revealing names and amounts paid, and when he was denied
the funds necessary for these activities, he had to raise the
money for his agents by confiscating cotton crops in the South
'�5 Richardson, op. cit. supra, note 2, 2281.
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1. (Continued)
Executive Privilege and Intelligence
and selling them at public auction. Three years after the end
of the War, when War Department auditors discovered that
General Dodge had paid spies for Grant's and Sherman's
armies, they peremptorily ordered him to make an accounting
of the exact sums. Receipts and vouchers signed by spies who
lived in the South were obviously difficult to obtain, and fur-
thermore the names of the agents, for their own security, could
not be disclosed. As a result, when the War Department closed
Dodge's secret service accounts 21 years after the war, they
were apparently still without a receipt for every dollar spent."
A leading legal decision governing the privilege of the Ex-
ecutive Branch to withhold intelligence also had its genesis in
the Civil War. In July 1861 William A. Loyd entered into a
contract with President Lincoln under which he proceeded
"within the rebel lines and remained during the entire war."
He collected intelligence information all during the war and
transmitted it directly to the President. At the end of the war
he was reimbursed his expenses, but did not get any of the
$200-per-month salary for which the contract called. After
Loyd's death a suit was brought by his administrator against
the Government to collect the salary Lincoln had contracted
to pay him.
The case was finally decided by the Supreme Court in 1876,
and the claim was denied. Mr Justice Field set forth in his
opinion a position on secrecy in intelligence matters which is
still being followed today. He wrote that Loyd was engaged
in secret service, "the information sought was to be obtained
clandestinely," and "the employment and the service were to
be equally concealed." The Government and the employee
"must have understood that the lips of the other were to be
forever sealed respecting the relation of either to the matter."
Were the conditions of such secret contracts to be divulged,
embarrassment and compromise of the Government in its pub-
lic duties and consequent injury to the public would result, or
furthermore the person or the character of the agent might be
injured or endangered. The secrecy which such contracts im-
pose "is implied in all secret employments of the Government
in time of war, or upon matters affecting foreign relations,"
and precludes any action for their enforcement. "The pub-
'Perkins, J. R., Trails, Rails and War, Bobbs-Merrill (1929).
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1. (Continued)
Executive Privilege and Intelligence
'information on intelligence activities was determined by the
resolution of these situations which occurred from the first
years of the Republic through the Civil War. Decisions in
later cases utilized the precedents which had here been estab-
lished. In 1948 the Supreme Court, deciding a case concern-
ing an application for an overseas air route, reaffirmed that
"the President, both as Commander-in-Chief and as the na-
tion's organ for foreign affairs, has available intelligence serv-
ices whose reports are not and ought not be published 0 the
world," and defined its own position on cases involving secret
information:
It would be intolerable that courts, without the relevant in-
formation, should review and perhaps nullify actions of the
Executive taken on information properly held secret. Nor can
courts sit in camera in order to be taken into executive confi-
dences . . . The very nature of executive decisions as to for-
eign policy is political, not judicial.'
Intelligence information is recognized by the three branches
of Government as of special importance because of its connec-
tion with foreign affairs and military security.
Authorities for CIA Information Controls
As an Executive agency CIA partakes of the privileges
accorded generally to the Executive Branch with respect to
withholding information, privileges ultimately dependent on
the separation of powers doctrine. In addition, Congress has
specifically recognized the secrecy essential in the operation of
Central Intelligence by providing in the National Security Act
of 1947 that the Director "shall be responsible for protecting
intelligence sources and methods from unauthorized dis-
closure." In the Central Intelligence Act of 1949, noting again
this responsibility of the Director, Congress exempted the
Agency from any law which requires the disclosure of the
organization, functions, names, official titles, salaries, or num-
licity produced by an action would itself be a breach of a con-
tract of that kind and thus defeat a recovery." 12
The pattern of executive privilege as applied to withholding
'Totten Adm'r v United States; 92 US 105 (1876) .
"Chicago and Southern Airlines, Inc. v Waterman Steamship Cor-
poration; 33 US 103 (1948).
AR
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1. (Continued)
Executive Privilege and Intelligence
bers of personnel employed. Other statutes exempt the Agency
from requirements to file certain information reports.
Pursuant to the Director's task of safeguarding intelligence
information, Agency regulations governing the release of infor-
mation serve notice upon employees that unauthorized dis-
closure is a criminal and an administrative offense. A crim-
inal prosecution for unauthorized disclosure can be instituted
against an employee under several statutes, including the Espi-
onage Laws, or administrative sanctions including discharge
can be applied against him. ,
Central Intelligence is also subject to the provision of Execu-
tive Order 10501 that "classified defense information shp.11 not
be disseminated outside the Executive Branch except under
conditions and through channels authorized by the head of the
disseminating department or agency." This provision, al-
though it has never been tested in the courts, gives the Director
added support in controlling the release of information to the
courts and Congress as well as to the public. He can and will
Upon request release information of no security significance to
the courts or Congress; he can exercise discretion in the release
of information produced by and concerning the CIA; but there
are limitations on his authority over information originating
in other departments, joint interagency documents, and per-
sonnel security information. If the decision whether to com-
ply with a demand for information cannot be made at the
Director's level, it is referred to the National Security Council.
CIA's position vis-a-vis the courts and Congress is unique
beside that of other agencies, because of the recognized secrecy
and sensitivity and the connection with foreign affairs pos-
sessed by the information with which the Agency deals. This
position has been tested on several occasions.
Intelligence and the Courts
The secrecy of intelligence employment which the Supreme
Court recognized in the Totten case on the Loyd-Lincoln con-
tract over eighty years ago is basically unchanged today. The
difficulties encountered in the courts by a person claiming pay
for secret work allegedly performed for the Government were
illustrated in the Gratton Booth Tucker case in 1954. Tucker
alleged that he had performed services "under conditions of
utmost secrecy, in line of duty, under the supervision of agents
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1. (Continued)
Executive Privilege and intelligence
of the United States Secret Service and of the C.I.D. of the
Armed Services and Department of Justice, FBI and of the
Central Intelligence Agency." He claimed that from 1942 to
1947 he contributed his services voluntarily and "without
thought of compensation in anticriminal and counterespionage'
activities in Mexico and behind the lines in Germany," and
that in 1950 he was assigned to Korea. For all this he brought
suit against the United States in the Court of Claims, seeking
payment of $50,000 annually for the years he worked and of
$10,000 as expenses. On the very basis of these allegations,
and without going into the matter any further, the court re-
fused recovery, citing the Totten case as authority.14
Another aspect of the Government's privilege not to disclose
state secrets in open court was decided several years ago by
the Supreme Court in the Reynolds case. This was a suit for
damages brought against the Government by the widows of
three civilian observers who were killed in the crash of a mili-
tary plane on which they were testing secret electronic equip-
ment. The Air Force refused to divulge certain information
which the widows thought necessary to their case, stating that
the matter was privileged against disclosure pursuant to Air
Force regulations prohibiting that reports be made available to
persons "outside the authorized chain of command." The Air
Force then made a formal claim of privilege, affirming that
"the aircraft in question, together with the personnel on board,
were engaged in a highly secret mission of the Air Force." An
affidavit by the Air Force Judge Advocate General asserted
further that the material could not be furnished "without seri-
ously hampering national security." The Supreme Court
accepted the Air Force argument, saying that "even the most
compelling necessity cannot overcome the claim of privilege if
the court is ultimately satisfied that military secrets are at
stake." And these Air Force statements had been sufficient
to satisfy the court of the military secret involved."
The privilege of withholding national, security information
from the courts has been subject to some limitation. One case,
U.S. v Jarvinen,16 illustrates that this executive privilege is not
"Gratton Booth Tucker v United States; 127 Ct. Cl. 477 (1954) .
u United States v Reynolds; 345 US 1 (1952).
"United States v Jarvinen; Dist. Ct. Western District of Washington,
Northern Div. (1952).
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Executive Privilege and Intelligence
judicially inviolable. Jarvinen was a casual informant in the
United States who gave information in 1952 to CIA and later
to the FBI that Owen Lattimore had booked passage to the
USSR. He later informed CIA that he had fabricated the whole
story. Soon thereafter Jarvinen was indicted for making false
statements to government agencies. At the trial a CIA em-
ployee called to testify by the Department of Justice prosecutor
was directed by CIA not to answer. The witness' claim of
privilege was not accepted, however, and when he refused the
court's order to answer he was held in contempt and sentenced
to fifteen days in jail. He was pardoned by the President.
The CIA argument had been based on the provisior} of the
CIA Act of 1949 that the Director "shall be responsible for pro-
tecting intelligence sources and methods from unauthorized
disclosure" and on Executive Order 10290, then in effect, which
limited dissemination of classified security information. The
court had reservations about the substantive merits of the priv-
ilege, and the widespread publicity emanating from the case
apparently vitiated the claim of need to protect sources and
methods. It was the further opinion of the court that in a
criminal prosecution the Government must choose either to
present all the pertinent information, regardless of its sensi-
tivity, or to risk dismissal of the case by not presenting any
sensitive information at all.
There have been several instances of indirect Agency par-
ticipation in court, cases, usually when employees have been
requested to furnish documents or testify on behalf of the Gov-
ernment or private parties. In recent cases in which other
Government agencies have participated there has been a co-
operation between them and Central Intelligence representa-
tives which was lacking in the Jarvinen case, and little difficulty
has been encountered with respect to the privilege of with-
holding classified information. A good example is the Justice
Department's prosecution of the case against Petersen,17 an
employee of the National Security Agency who had passed NSA
documents to the Dutch. The Justice Department needed to
present classified information to the court in order to substanti-
ate its case, but the Director of Central Intelligence advised, in
"United States v Petersen (E. D. Va. Criminal No. 3049, January 4,
1955).
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1. (Continued)
Executive Privilege and Intelligence
the interest of security, that a particular document not be used.
The Justice Department accepted this recommendation and
succeeded in convicting Petersen on other evidence.
CIA and Congress
CIA's record of cooperation with congressional committees
has on the whole been satisfactory. The Agency certainly
recognizes that Congress has a legitimate interest in some
intelligence information and obviously a better claim on it
than say the private citizen who needs it for purposes of litiga-
tion. Although, under the separation of powers doctrine, in-
telligence gathering and production is an executive function
and the responsibility of the Executive Branch, the Congress
does have responsibilities in the foreign affairs field. It is,
moreover, the appropriating authority for Agency funds, and
indiscriminate withholding of information could not only result
in a poorly informed Congress but also jeopardize the good will
the Agency enjoys with it. Within the bounds of security,
therefore, CIA has attempted conscientiously to fulfill requests
from Congress proper to the legislative function. And Con-
gress, for its part, has so far respected CIA's decision to with-
hold information or produce it only in closed session with the
understanding that it is not to be released.
If summoned by a subpoena to testify before a Congressional
Committee, all CIA employees, including the Director, are re-
quired to appear or be held in contempt of Congress. There
are few instances, however, in which an employee has been
subpoenaed to testify involuntarily, and no documents have
ever been released to Congress without the Director's approval.
In most cases it has been as a matter of form or at Agency
request that an employee's testimony has been called for and
a subpoena served. In only two instances situations have
arisen which led to strained relations between the Agency and
congressional committees. When Agency testimony was de-
sired by the Senate Internal Security Committee concerning
the security status of John Paton Davies, CIA successfully re-
quested several delays in the hearings on security grounds.
And in 1954, while the Senate Committee on Government
Operations was considering inquiring as to certain facts relat-
ing to the security status of an Agency employee, counsel for
the Committee and the General Counsel of CIA agreed on the
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1. (Continued)
Executive Privilege and Intelligence
legitimate interests of the Agency and the Committee. The
employee was never questioned by the Committee.
No court cases have defined an employee's rights to withhold
from Congress information which has been classified and the
divulgence of which could work harm to this country's intelli-
gence program. Such a case could theoretically arise through
testing a Congressional contempt citation in a habeas corpus
proceeding, but it is unlikely that such a test will be made.
The employee could use an order from the Director as a basis
for not testifying, and the Director's judgment has always been
respected by the Congress when he has decided he cannot re-
veal certain information. Because the information which CIA
has is so clearly within the purview of the Executive Branch,
this Agency has a much stronger legal basis for refusal than
other departments have.
If Congress should persist, there would of 'course have to be
eventual Presidential support for continued refusal to give in-
formation. Such support was tendered, outside the intelli-
gence and foreign fields, in 1909 when Theodore Roosevelt with-
stood a Senate resolution calling for certain papers in the
Bureau of Corporations concerned with the absorption by U.S.
Steel of another corporation. Roosevelt informed the Senate
that he had obtained personal possession of the papers it de-
sired but that the Senate could get them only by impeachment.
"Some of these facts which they [the Senate] want," he de-
clared, "for what purpose I hardly know, were given to the Gov-
ernment under the Seal of Secrecy and cannot be divulged,
and I will see ta it that the word of this Government to the
individual is kept sacred." 18
Generally, there has been a spirit of cooperation between the
Legislative and Executive Branches. In those cases where a
conflict has occurred, and the Executive has refused to divulge
information requested even in the strongest terms by the Legis-
lature, the decision of the Executive has prevailed. The Con-
stitution has been in existence for over 170 years and under it
34 Presidents and 85 Congresses have forged a strong interpre-
tation of the separation of powers. In the field of foreign
affairs intelligence, the Director of Central Intelligence, acting
The Letters of Archie Butt, Personal Aide to President Roosevelt;
by Abbott, pp. 305-06.
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1. (Continued)
Executive Privilege and Intelligence
under the constitutional powers of the Executive Branch of
Government together with powers granted by statute, can with-
hold such information as he believes is in the best interests of
the United States. If a showdown were to occur, however, the
issue is between the President and Congress as to whether
classified information should be divulged against the wishes of
the Director, who is responsible for the protection of sources
and methods 14istorical precedent in similar situations ap-
pears to favor the President.
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2. "Impunity of Agents in International Law," M.C. Miskovsky
(Spring 1961, Volume 5/2)
Legal grounds for holding
another nation's agents not per-
sonally liable for their directed
violation of a nation's laws.
IMPUNITY OF AGENTS IN INTERNATIONAL LAW
International rules and institutions have existed since the
earliest days, but it was not until the 16th and 17th cen-
turies that there were developed the laws governing rela-
tions between European states which became the basis of
our present-day international law. The disintegration of the
Holy Roman Empire and the emergence of sovereign states
representing great concentrations of military, econonlic, and
political power led to the development or formulation of new
rules by which nations sought to govern their dealings with
one another. At the same time the concept of sovereignty as
a power constituting the sole source of laws was enunciated,
and with it an explanation of the concept of the nation.
The rules of international law and the concept of sover-
eignty in a sense limit each other; and particularly in the
treatment of crimes like espionage and subversion, interna-
tional law is confronted with what Philip C. Jessup once called
the "taboo of absolute sovereignty." The state is especially
jealous of its power to punish those who it believes have tried
to undermine its authority, and the principles of international
law can apply in matters affecting the security of a state
only at the discretion of that state. The Swiss diplomat
Emerkh de Vattel, whose book Le Droit des Gens 1 had an
influence on American political philosophy, was one of the
early writers in international law who observed that men
"put up with certain things although in themselves unjust
and worthy of condemnation, because they cannot oppose them
by force without transgressing the liberty of individual Na-
tions and thus destroying the foundations of their natural
society." Vattel was particularly concerned with the rela-
tionships, duties, and responsibilities of nations during times
of stress.
Law of Nations. Fenwick, Trans. (Washington: Carnegie Institu-
tion of Washington, 1916.)
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2. (Continued)
, 4
Impunity of Agents
Principles of National Jurisdiction
The concept of sovereignty carries along with it the rule
that the laws of a country are supreme within its own ter-
ritorial limits. Consequently, generally speaking, whether a
particular act constitutes a crime is determined by the laws
of the country within whose borders it was committed. In
extension of this territorial principle for determining national
jurisdiction, however, there have been developed, in accord-
ance with the varying experience of individual nations, at
least four other pragmatic principles which a state may choose
to follow in determining whether it can try a person crim-
inally for acts committed in violation of its laws. A national-
ity principle would determine jurisdiction by reference to the
nationality or national character of the person committing
the offense, so that his own state would try him under its
law. Under a protection principle, jurisdiction would go to
the state whose national interest was injured by the offense,
wherever it was committed. _ A passive personality principle
would similarly determine jurisdiction by reference to the
nationality or national character of the person injured. And
a universality principle, finally, would give it to the state hav-
ing custody of the offender.2 In any case, however, a state
may claim jurisdiction only with respect to an act or omis-
sion which is made an offense by its own laws.
The principle of territorial competence is basic in Anglo-
American jurisprudence, and it has been incorporated in many
other modern state codes. Its basis is the sovereign, which
has the strongest interest, the best facilities, and the most
powerful instruments for repressing crimes in its territory,
by whomever committed. It is obvious that under the ter-
ritorial principle the sovereign must exercise exclusive con-
trol over the acts of persons within its territory; there is no
question of its right of jursidiction to punish acts that con-
stitute a threat to its authority.
The concept of sovereignty is so strong, however, that it
may also, in the protective principle of jurisdiction, push be-
yond state borders with power to try persons outside engag-
ing in acts against the security, territorial integrity, or p0-
'Research in International Law Supplement to the American Journal
of International Law, Vol. 29 (1935) .
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2. (Continued)
Impunity of Agents
litical independence of the state. This principle was formu-
lated in statutes of the Italian city-states in the 15th and
16th centuries, and many modern states apply it to both
aliens and citizens. Conflicts arise, of course, where the pro-
hibited acts are carried on in another state in which such
acts are not illegal. Without agreement, it is difficult to see
how the protective theory can be effective in such cases with-
out an infringement of the sovereignty of the second state.
In the United States, the rule seems to be that the pro-
tective principle is not applied unless the legislation designat-
ing the crimes so specifies. In the Soviet Union, espionage
cases apparently do fall under the protective theory, of ju-
risdiction. In the October 1960 International Affairs, G.
Zhukov wrote:
It should be noted that American plans of space espionage di-
rected against the security of the USSR and other Socialist coun-
tries are incompatible with the generally recognized principles and
rules of international law, designed to protect the security of states
against encroachments from outside, including outer space.
This position would give the USSR (and other Bloc countries)
jurisdiction over espionage offenses against them, no matter
where perpetrated.
Scope of Immunities
On the other hand, the USSR has, in effect, recognized
the immunity of American military attaches within its ter-
ritory by not prosecuting the charges of espionage leveled
against them. It thus honors the provisions of international
law and agreement whereby officers, diplomatic representa-
tives, consuls, armed forces, ships, aircraft, and other persons
and instrumentalities of a state may be immune from the
exercise of another state's jurisdiction even under the terri-
torial principle and consequently not subject to legal penal-
ties.3
While diplomatic immunity as applied to embassy officials
is universally accepted, the question of what persons outside
' "Diplomatic Immunity from Local Jurisdiction: Its Historical De-
velopment Under International Law and Application in United States
Practice," by William Barnes. Department of State Bulletin, 1 August
1960.
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Impunity of Agents
this category can claim a similar immunity becomes more dif-
ficult. There is nevertheless some authority in international
law for the proposition that if a man is a duly commissioned
agent of his government, albeit without diplomatic immunity,
any illegal acts he performs within the scope of his duties
may still be considered not his personal violations but his
government's national acts, raising questions public and po-
litical between independent nations. Under this theory the
offended nation ought not try the individual before ordinary
tribunals under its own laws but should seek redress accord-
ing to the law of nations.4
This theory and variations of it have found acceptance
in a number of situations. For example, in the Claims Con-
vention between France and Mexico of 25 September 1924,
Mexico assumed liability for certain acts of its revolutionary
forces, accepting the even broader principle that the "re-
sponsibility of the State exists whether its organs acted in
conformance with or contrary to law or to the order of a- su-
perior authority." The applicability of the theory in any
particular case depends, of course, not only on its being ac-
cepted by the offended nation but also on an acknowledgment
by the offending nation that the offender is in fact its com-
missioned agent, that it authorized or now adopts his acts
as its public acts. For this reason texts on international law
have denied its application to the acts of secret political agents
and spies:
... An agent. .. secretly sent abroad for political purposes with-
out a letter of recommendation, and therefore without being for-
mally admitted by the Government of the State in which he is
fulfilling his task. . . has no recognized position whatever accord-
ing to International Law. He is not an agent of a State for its
relations with other States, and he is therefore in the same position
as any other foreign individual living within the boundaries of a
State. He may be expelled at any moment if he becomes trouble-
some, and he may be criminally punished if he commits a political
or ordinnry crime. . .
Spies are secret agents of a State sent abroad for the purpose of
obtaining clandestinely information in regard to military or politi-
cal secrets. Although all States constantly or occasionally send spies
Secretary of State Webster to Attorney General Crittenden, 15
March 1841. See 2 Moore International Law Digest 26 (1906) .
� Haekworth 557 (1943).
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Impunity of Agents
abroad, and although it is not considered wrong morally, politically,
or legally to do so, such agents have, of course, no recognized posi-
tion whatever according to International Law, since they are not
agents of States for their international relations. Every State
punishes them severely when they are caught committing an act
which is a crime by the law of the land, or expels them if they
cannot be punished. A spy cannot legally excuse himself by plead-
ing that he only executed the orders of his Government, and the
latter will never interfere, since it cannot officially confess to hav-
ing commissioned a spy.
Nevertheless governments do sometimes officially confess
to having commissioned their clandestine agents and do in-
terfere in their prosecution under the law of the 'offended
land. Although the several historical cases on record have
not afforded a fully adequate test of this ground for claim-
ing personal impunity they do include some in which the of-
fended nation has accepted it. In three cases the United
.States has been involved.
Paramilitary Raid
During the 1837 insurrection in Canada the rebels ob-
tained recruits and supplies from the United States. A small
steamer, the Caroline, was used for this purpose by a group
encamped on the American side of the Niagara River. On
29 December 1837, while moored at Schlosser, on the Ameri-
can side, with 33 American citizens on board, this steamer
was boarded by an armed body of men from the Canadian
side under the orders of a British officer. They attacked the
occupants, wounding. several and killing at least one Ameri-
can, and then fired the steamer and set her adrift over Ni-
agara Falls. The United States protested. The British Gov-
ernment replied that the piratical character of the Caroline
was established, that American laws were not being enforced
along the border, and that destruction of the steamer was an
act of necessary self-defense.
In November 1840 British citizen Alexander McLeod was
arrested by New York State authorities on a charge of mur-
" H. Lauterpacht, Oppenheim's International Law (Longman's, 7th ed.,
1918), Vol. I, pp. 770, 772.
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2. (Continued)
Impunity of Agents
der in connection with the Caroline affair. On 13 December
1840 Mr. Fox, the British Minister at Washington, asked on
his own responsibility for McLeod's immediate release, on the
ground that the destruction of the Caroline was a "public
act of persons in Her Majesty's service, obeying the order of
their superior authorities," which could, therefore, "only be
made the subject of discussion between the two national Gov-
ernments" and could "not justly be made the ground of legal
proceedings in the United States against the persons con-
cerned." On 28 December 1840 the U.S. Secretary of State,
Mr. Forsythe, replied that no warrant for interposition in
the New York State case could be found in the powers with
which the Federal Executive was invested, and he also denied
that the British demand was well founded.
When on 12 March 1841, however, Mr. Fox presented the
British Government's official and formal demand for McLeod's
release on the same grounds, Daniel Webster, who had mean-
while become Secretary of State, wrote to the Attorney
General communicating the President's instructions and lay-
ing down the following principle:
That an individual forming part of a public force, and acting
under the authority of his Government, is not to be held answerable,
as a private trespasser or malefactor, is a principle of public law
sanctioned by the usages of all civilized nations, and which the
Government of the United States has no inclination to dispute.
Webster answered the British on 24 April, admitting the
grounds of the demand, but stating that the Federal Govern-
ment was unable to comply with it. He apparently believed,
however, that the British action would give New York State
cause to exempt McLeod from prosecution. McLeod brought
a habeas corpus proceeding, but his discharge was refused
by the New York court. He was brought to trial on the mur-
der charge and acquitted. In a final note to Lord Ashburton
disposing of the Caroline matter, Mr. Webster wrote:
This Government has admitted, that for an act committed by the
command of his Sovereign, jure belli, an individual cannot be re-
sponsible in the ordinary Courts of another State. It would regard
it as a high indignity if a citizen of its own, acting under its
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Impunity of Agents
authority and by its special command in such cases, were held to
answer in a municipal tribunal, and to undergo punishment, as if
the behest of his government were no defense or protection to him."
Confidential Factfinder, No Spy
On 18 June 1849 Secretary of State Clayton issued to Mr.
A. Dudley Mann, who was then in Europe, instructions for
a mission it was desired he undertake as a special and con-
fidential agent "to obtain minute and reliable information in
regard to Hungary," then in revolt against the Austrian Im-
perial Government. Mr. Mann proceeded to Vienna, where he
, found the revolution practically .quelled, and therefore did
not visit Hungary. The text of his instructions, however, was
made public in 1850 when President Taylor released it to the
U.S. Senate in response to a Senate resolution. The Austrian
charg�'affaires in Washington, Mr. Hulsemann, then entered
an official protest, declaring:
Those who did not hesitate to assume the responsibility of send-
ing Mr. Dudley Mann on such an errand, should, independent of
considerations of propriety, have borne in mind that they were ex-
posing their emissary to be treated as a spy. It is to be regretted
that the American Government was not better informed as to the
actual resources of Austria and her historical perseverance in
defending her just rights . .. the Imperial Government totally dis-
approves, and will always continue to disapprove, of those proceed-
ings, so offensive to the laws of propriety; and that it protests
against all interference in the internal affairs of its Government.
Mr. Webster, by now again Secretary, replied:
.. . the American Government sought for nothing but the truth;
it desired to learn the facts through a .reliable channel. It so hap-
pened, in the chances and vicissitudes of human affairs, that the
result was adverse to the Hungarian revolution. The American
agent, as was stated in his instructions to be not unlikely, found the
'The texts of the early diplomatic communications regarding the
Caroline affair and the McLeod case can be found in the report on
People v. McLeod, 25 Wend 482 (N.Y. 1841) . Others can be found in
British and Foreign State Papers 1841-1842, volume 30. 2 Moore 24
(1906) contains a complete summary of the affair. So does "The Caro-
line and McLeod Cases" by P. Y. Jennings, appearing in 32 Am. Jr. Int.
Law 82 (1938) . The latter also contains information on the aftermath
of the case in which McLeod sought reimbursement from a Claims
Commission. A learned critique by Judge Talmadge of the decision in
People v. McLeod is found in 26 Wend Appendix 663 (N.Y. 1842) . Text-
books such as BISHOP p. 584 (1953) and 1 HYDE 239 (2d Edition 1931)
give summaries of the affair.
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Impunity of Agents
condition of Hungarian affairs less prosperous than it had been, or
had been believed to be. He did not enter Hungary nor hold any
direct communication with her revolutionary leaders. He reported
against the recognition of her independence because he found she
had been unable to set up a firm and stable government. He care-
fully forebore, as his instructions require, to give publicity to his
mission, and the undersigned supposes that the Austrian Govern-
ment first learned its existence from the communications of the
President to the Senate.
Mr. Hulsemann will observe from this statement that Mr. Mann's
mission was wholly unobjectionable, and strictly within the rule of
the law of nations, and the duty of the United States as a neutral
power. He will accordingly feel how little foundation there is for
his remark that "those who did not hesitate to assume the respon-
sibility of sending Mr. Dudley Mann on such an errand, should,
independent of considerations of propriety, have borne in mind that
they were exposing their emissary to be treated as a spy." A spy is
a person sent by one belligerent to gain secret information of the
forces and defenses of the other, to be used for hostile purposes.
According to practice, he may use deception, under the penalty of
being lawfully hanged if. detected. To give this odious name and
character to a confidential agent of a neutral power, bearing the
conimission of his country, and sent for a purpose fully warranted
by the law of nations, is not only to abuse language, but also to
confound all just ideas, and to announce the wildest and most
extravagant notions, such as certainly were not to have been ex-
pected in a grave diplomatic paper; and the President directs the
undersigned to say to Mr. Hulsemann that the American Govern-
ment would regard such an imputation upon it by the cabinet of
Austria, as that it employs spies, and that in a quarrel none of its
own, as distinctly offensive, if it did not presume, as it is willing to
presume, that the word used in the original German was not of
equivalent meaning with "spy" in the English language, or that
in some other way the employment of such an opprobrious term
may be explained. Had the Imperial Government of Austria sub-
jected Mr. Mann to the treatment of a spy, it would have placed
itself without the pale of civilization, and the cabinet of Vienna
may be assured that if it had carried, or attempted to carry, any
such lawless purpose into effect in the case of an authorized agent
of this Government the spirit of the people of this country would
have demanded immediate hostilities to be waged by the utmost
exertion of the power of the Republic�military and naval.'
German Saboteur
Werner Horn, a German, was indicted in the Federal Dis-
trict of Massachusetts for unlawfully transporting explosives
early in World War I from New York to Vanceboro, Maine.
� 1 Moore 218 (1906)
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Impunity of Agents
Horn, claimed immunity from trial upon the indictment in a
petition for habeas corpus. His contention, which the Circuit
Court of Appeals for the First Circuit called "without prece-
dent," was as follows:
That your petitioner is an officer in the army of the empire of
Germany, to wit, a first lieutenant in the division of the aforesaid
army known as the. Landwehr; that a state of war exists between
the empires of Great Britain and Germany, which state of war has
been recognized by the President of the United States in an official
proclamation; that your petitioner is accused of destroying part
of the international bridge in the township of McAdam, province
of New Brunswick and Dominion of Canada; that he is now held
in custody by the respondent on the charge of carrying explosives
illegally, which allegation, if true, is inseparably connected with the
destruction of said bridge; that he is a subject and citizen of the
empire of Germany and domiciled therein, and is being held in
custody for the aforesaid act, which was done under his right, title,
authority, privilege, protection, and exemption claimed under his
commission as said officer as described aforesaid.
Claiming thus that the felony for which he was indicted
was incidental to an act of war cognizable only by the law of
nations, Horn quoted Webster's statement in the Caroline af-
fair: "That an individual forming part of a public force, and
acting under the authority of his government, is not to be
held answerable as a private trespas.ser or malefactor, is a
principle of public law snrictioned by the usages of all civilized
nations, and which the Government of the United States has
no inclination to dispute." The Circuit Court did not dispute
the principle, but, noting that "this exemption of the individ-
ual is on the ground that his act was a national act of his
sovereign," held that the petition failed "entirely to show
either express or implied national authority for doing the acts
charged in the indictment; therefore no question of interna-
tional law is involved, and the District Court has full jurisdic-
tion to proceed to trial of the indictment found by its grand
jury-"9
European Cases
In 1887 the German Government arrested and put on trial
one Schnaebele, a French customs inspector who had operated
'Horn v. Mitchell, 232 F. 819 (1st Cir., 1916). Affirmed on other
grounds 243 US 247 (1917) .
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Impunity of Agents
a network of secret agents in Germany. The arrest was made
during an official visit he paid to Germany to hold a customs
conference. In the course of his interrogation he admitted
that he had been inciting Gernian nationals to treason. The
French Government intervened on the grounds that Schnae-
bele enjoyed extraterritorial protection during his visit to Ger-
many. These grounds, which obviated any need for French
acknowledgment of his commission as a subversive agent, were
apparently considered sufficient: Bismarck ordered Schnae-
bele released.10
In the 1920's the Italian secret service, using Italian agents
in Switzerland, lured one Cesare Rossi from his Swiss hotel
room to the Italian enclave at Campione, where he was ar-
rested and taken to Italy. The Swiss Government protested
these "acts attributable to the authorities of another state"
which "not only violate national dignity but which also cause a
state of unrest and suspicion . . ." It is not known whether
\ the Italian authorities acknowledged such an attribution of
their agents' acts in the diplomatic talks which followed, but
the affair was settled in de facto accordance with the principle
of agent impunity: on 21 November 1928 the Swiss Govern-
ment announced that it considered the matter closed, since
the Italian official involved in illegal intelligence activities had
left Switzerland and two Italian nationals who had illegally
relayed information had been deported.11
In Sweden there is apparently a trend toward the rule that
if an apprehended agent is acknowledged by his government
to have been acting under orders he cannot be brought to
trial in the apprehending country; his illegal acts become a
matter for diplomatic discussion between the two govern-
ments. A case since World War II on which details are not
available was disposed of in this way by a Swedish court.12
War and "Imperfect" War
None of these cases offers a precise precedent for one in
which a peacetime espionage agent is apprehended by the
target country and then released to his government upon its
" Johannes Erasmus, The Intelligence Service (Institute of Interna-
tional Law, Goettingen University, 1952) , p. 55.
11 Ibid., p. 54.
" Believed to be documented in Rytt Juidiskt Arkiv No. 15, 1946.
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acknowledgment of his commission. In those that are other-
wise quite close, war is an element in the circumstances, with
the offended nation often a third party. Webster's final note
on the Caroline affair specifically cited ins belli. The blame-
lessness of the mere instruments of a government waging
however unjust a war Is well recognized. Vattel Wrote:
But as to the reparation of any damage�are the military, the
general officers and soldiers, obliged, in consequence, to repair the
injuries they have done, not of their own will, but as instruments
in the hands of their sovereign? It is the duty of subjects to sup-
pose the orders of their sovereign just and wise . . . When, there-
fore, they have lent their assistance in a war which is afterwards
found to be unjust, the sovereign alone is guilty. He aloneois bound
to repair the injuries. The subjects, and in particular the military,
are innocent; they have acted only from a necessary obedience."
Yet there appears to be a similarity between the wartime
situation in which a uniformed member of a force gathering
information behind enemy lines, when captured, is treated as
a prisoner of war rather than executed for spying and the
peacetime situation of an intelligence agent whose acts are
acknowledged and adopted by the sending state. In both the
agent is a mere instrument of the state. The basis for the
traditional practice of holding the agent personally respon-
sible seems to be the clandestine nature of his acts. When
these are adopted by the sending state they are no longer
clandestine, and the ultimate responsibility is fixed.
As for ius beth, texts on international law recognize that
no clean-cut distinction can be made between war and peace
in this respect. A contemporary authority cites some of the
older texts for the proposition that:
If a country feels that it is being threatened by the unlawful
conduct of another country�such as perhaps by preparations for
aggression�that country should be free to protect itself against
such a threat with the help of defensive measures. This includes
the employment of agents for the purpose of determining enemy
intentions."
"3 Vattel, Section 187.
"Erasmus, op. cit., p. 115, footnote 120, citing Heffter-Geffeken
495) , Venselow (p. 227), Vattel (pp. 598 and 607), and Rogge, Nationale
Friedens-Politik (p. 596) .
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The older texts point out various types of hostile acts short
of formal war that a sovereign might commission his subjects
to perform.15 Judge Rutherford says:
If one nation seizes the goods of another nation by force, upon
account of some damage, etc., such contentions by force are re-
prisals. There may be likewise other acts of hostility between two
nations which do not properly come under the name of reprisals,
such as the beseiging of each other's towns, or the sinking of each
other's fleets, whilst the nations in other respects are at peace with
each other. These are public wars, because nations are the con-
tending parties. But as they are confined to some particular ob-
ject, they are of the imperfect sort. . ."
Vattel commented that:
A war lawful and in form, is carefully to be distinguished from an
unlawful war entered on without any form, or rather from those
incursions which are committed either without lawful authority or
apparent cause, as likewise without formalities, and only for havoc
and pillage."
He indicated that all hostile acts were lawful wars, if made
with lawful authority and apparent cause, and "not for pillage
and havoc." This rule had its application in admiralty cases.
Justice Story stated:
Every hostile attack of a piratical nature in times of peace, is not
necessarily piratical. It may be by mistake, or in necessary self-
defense, or to repel a supposed meditated attack by pirates�it may
be justifiable, and then no blame attaches to the act; or, it may
be without just excuse, and then it carries responsibility in dam-
ages. If it proceed further; if it be an attack from revenge and
malignity, from gross abuse of power and settled purpose of mis-
chief, it then assumes the character of a private unauthorized war,
and may be punished by all the penalties which the law of nations
can properly administer."
' Judge Talmadge discusses this point in his learned critique of the
decision in People v. McLeod, cited in footnote 7 above.
" 2 Rutherford, Section 10, as cited in '26 Wend Appendix 663 (NY
1842) .
113 Vattel, Section 67.
"The Marianna Flora. The Vice-Consul of Portugal, Claimant. 24
US (11 Wheat. 1,41) 1 (1828); 6 L. Ed. 405, 414.
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These texts, therefore, in enunciating the principle of per-
sonal impunity, are not speaking of war only in terms of for-
mal declared war, but including also hostile acts when other-
wise peaceful conditions exist. As Rutherford points out:
In the less solemn kinds of war, what the members do who act
under the particular direction and authority of their nation, is by
the law of nations no personal crime in them; they cannot, there-
fore, be punished consistently with the law, for any act in which it
considers them only as the instruments, and the nation as the
agent."
A principle of international law which emerges from a study
of the older texts might then be stated as follows. 'Where an
individual, under orders from his sovereign, commits a hostile
act upon a foreign nation, this cannot be said to be a contro-
versy between individuals, to be decided by a court under do-
mestic law where there is a common judge and arbiter. This
is a controversy between nations, who admit no judge except
themselves. While this rule arose during periods of historical
development when concepts of hostilities and relations be-
tween nations were much more rudimentary than at present,
the basic problems of the rights and responsibilities of nations
were similar to What they are now. This principle has been
recognized by the United States since the early days of the Re-
public. The third Attorney General of the United States,
writing to the Secretary of State on 29 December 1797, declared.:
It is well settled in the United States as in Great Britain, that a
person acting under a commicsion from the sovereign of a -foreign
nation is not amenable for what he does in pursuance of his cora-
rniggion to any judiciary triblm21 of the United States."
Broader Considerations
We have not attempted in this discussion to take into ac-
count the broader implications of general international ac-
ceptance of a rule of law that the state is responsible for all
the acts of a subject carried out pursuant to orders of the
sovereign. It can easily be seen that a nation might demand
" 2 Rutherford, Section 18, as cited in 26 Wend Appendix 663 (NY
1842) .
" Quoted in 26 Wend Appendix 663 (NY 1842) .
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limitations placed on the rule, and in many cases a nation
might totally reject the rule for its purposes. Questions
such as the following would have to be pondered by all na-
tions. Could a murder committed pursuant to orders by an
agent of a foreign nation be permitted to go unpunished if the
foreign nation demanded his return? What would be the im-
plications for a small nation if a strong nation flooded the
country with illegal espionage agents acting under orders, and
upon capture made a request for their return? Would war
or the threat of war as an alternative to punishment act as a
deterrent on the use of authorized confidential agents collect-
ing information from foreign countries?
Some of these questions have been raised in the past and
have moved many writers not to recognize the right of a sov-
ereign to expect the return of an agent who pursuant to or-
ders has committed an offense against another sovereign.
We have not attempted to present here the opposing viewpoint
of these writers or to disciiss the limitations on the rule of
personal impunity as it appears in international law. The
purpose of this paper has been simply to explore the precedents
and authorities in international law to determine if there is
any basis for the proposition that a government has the right
to the return of one of its officers who has been apprehended
abroad for criminal acts committed pursuant to its orders.
There is such a basis.
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3. "The Protection of Intelligence Data," John D. Morrison, Jr.
(Spring 1967, Volume 11/2)
Historical review of the problem
and some remedial proposals.
THE PROTECTION OF INTELLIGENCE DATA
John D. Morrison, Jr.
The unauthorized exposure of classified information is a chronic
problem for governments and intelligence agencies. Defense against
the conscious agent of a foreign power is different from, and in some
ways less difficult than, deterring revelations due to carelessness,
malice, or greed on the part of government employees. The problem
is particularly acute in a democratic society whose laws and courts
must provide broad protection to criminal defendants. The deterrence
provided by the espionage laws and related statutes is weakened
by the difficulty of prosecution under them. This is especially true
in cases involving disaffected or careless employees of intelligence
agencies; the defenses usually include strong equitable pleas which
may excite a sympathetic public response.
No legislation or administrative procedure can offer perfect pro-
tection. It is submitted, however, that both our laws and our admin-
istrative procedures could be improved so as to provide more effective
deterrence. Some particular avenues that might be taken will emerge
from the following discussion.
The Espionage Laws: An Incomplete Structure
A review of American legislation in the field of criminal espionage
shows that historically there has been limited legislative effort directed
to the protection of intelligence data. As a result There is a startling
lack of protection for a governmental function of growing importance
and sensitivity. Perhaps the need for laws protecting intelligence
data has reached significant proportions only in the relatively recent
past
The changes, technological and other, in the manner in which
nations deal with each other have caused some improvements in
legislation dealing with the protection of state secrets. Diplomatic
communications have traditionally been protected. As early as 1807,
the Supreme Court suggested that ,the legislature recognize and
provide against crimes affecting the national security which have
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not ripened into treason."1 It was not until 1911, however, that
Congress passed the first ,important statute dealing with the broad
problem of espionage. In 1917 the language of the 1911 act was
amended to read much as it does today. More recently congressional
attention has been focused�and appropriate legislation enacted�on
the problems involved in protecting atomic energy data2 and com-
munications intelligence.3 The Internal Security Act of 19504 made
it unlawful for a government employee merely to communicate classi-
fied information to a known representative of a foreign governrnent.5
However, the espionage laws6 are still the basic statutory protection
against unauthorized disclosure of intelligence materials and informa-
tion. No legislation has yet been enacted to cover the new problems
arising out of the chronic "cold war" status of international relations
and the consequent need for a sophisticated, professional intelligence
apparatus as an arm of the executive. The wartime concept of the
military secret is inadequate to cover information about the personnel,
activities, and products of such an apparatus, information whose
extreme sensitivity is often not readily apparent even though its
exposure may have a most damaging effect on the national security.
These shortcomings point to the need for new legislation establishing
a category "Intelligence Data" and providing that anything so desig-
nated by an authorized official shall be judicially recognized as such
solely on the basis of that designation. This would solve a vexatious
and recurring problem for which there is no known cure in existing
laws. That problem is the immunity enjoyed by an exposer of sensitive
information when the information itself cannot for practical reasons
be brought into the open for the purpose of prosecution.
The Official Secrets Acts
It has often been suggested that, if legislation is needed in this
area, the British Official Secrets Acts with their broader protection
offer a good example to be followed. It is not commonly understood
'Ex parte Bollman and Ex parte Swartwout, 4 Cranch 75, 127, 2 L. Ed. 554,
571 (1807).
242 U.S.C. 42271 et seq.
*18 U.S.C. �798.
50 U.S.C. �783(b).
'See Scarbeck o. U.S., 317 F. 2d 548, cert. denied, 83 S. Ct. 1897 (1983)�
� 18 U.S.C. ��791-798.
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that the British acts are based on a different legal theory from that
underlying our espionage acts. Under our system the information
divulged must be shown to be related to national defense and security
either by its very nature or as coming within statutory definitions
such as those for communications intelligence and atomic energy
data. The British acts are based on the theory of privilege, according
to which all official information, whether or not related to the national
defense and security, is the property of the crown. It is therefore
privileged, and those who receive it officially may not divulge it
without the crown's authority. .
In a British prosecution for unauthorized disclosure several con-
sequences flow from the privilege theory. Portions of the trial' can
be held in camera if the court agrees. Under our constitution, while
certain procedural aspects can be considered in camera, no part of
the actual trial could be heard privately. In Britain certain pre-
sumptions may apply. For instance, if the defendant is known to
have possession of privileged information and to have been in the
company of a known foreign espionage agent, there is a presumption
that he passed the information. The presumption is rebuttable; but
our Supreme Court opinions indicate that such a presumption would
not be permissible here. Most important, in the,English system it is
not necessary to prove that any item of information relates to the
national defense and security.
A good example is the so-called Isis case in which two Oxford
students published in their college magazine, Isis, the story of their
experiences in the Navy, including technical intelligence operations in
the Baltic. The prosecution merely testified that the article contained
information which they had acquired in their official service and was,
therefore. ?rivileged. After the verdict of guilty, the prosecution
approached the court alone, without presence of defendants or defense
counsel, and briefed the court, solely for purposes of sentencing, on
the significance of each item of information to the government. Such
a briefing, we believe, would be held error under our system?
In another case, that of an RAF officer named Wraight who defected
to Russia and then returned, a government witness who had inter-
'Jencks v. U.S, 353 U.S. 657, 668 (1957). But see post Jencks Statute 18
U.S.C. �3500(c) permitting in camera examination for relevancy and editing of
pre-trial reports of government witnesses.
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viewed the defendant for the security services was allowed to testify
without publicly identifying himself. His name was handed in writing
to the court Possibly this could be done here if the defense agreed
to it, but it seems clear it could not be done over the defense's
objection.
In short, the Official Secrets Acts would seem to be in important
respects unconstitutional in this country and therefore cannot be
relied on as examples of means by which we could protect intelligence
data. In addition, despite the technical advantages which the British
laws provide for the prosecution, experience has shown that these do
not by any means give complete protection; they are only to some
degree more effective than our system.
Intelligence Sources and Methods
The statutory authorities and responsibilities Of the Director of
Central Intelligence include the responsibility for "protecting intelli-
gence sources and methods from unauthorized disclosure." 8 The Con-
gress's use of the term 'intelligence sources and methods" indicates
its recognition of the existence of a special kind of data encompassing
a great deal more than what is usually termed "classified intelligence
information." The espionage laws and the statutes designed to protect
communications and atomic secrets, though they specify in detail the
kinds of information they seek to protect, nevertheless do not cover
everything that might be defined as intelligence data whose exposure
could be detrimental to the national interests. For example, knowing
the identities of U.S. covert intelligence officers .or the fact that US.
intelligence is making a study of certain published unclassified ma-
terials might be of great value to a foreign intelligence agency, but
there is some question whether such information would be considered
by a court to be included among the things protected by existing
statutes.
The Congress has also recognized the need for protecting intelli-
gence sources and methods by enacting for CIA a number of special
authorities and exemptions from legal requirements otherwise in
general force throughout the government The Agency is exempted
from the "provisions of any . . . law which require the publication
'National Security Act of 1947, 1102(d), 61 Stat 495 50 U.S.C. 1403.
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or disclosure of the organization, functions, names, official titles,
salaries, or numbers of personnel employed by the Agency." 9
Simi-
larly, the Agency is authorized to expend the funds made available
to it for objects of a confidential, extraordinary, or emergency nature,
such expenditures to be accounted for solely on the certificate of
the Director. It is exempted from statutory requirements regarding
exchanges of funds and the performance rating of employees and
from laws and executive orders governing appeals from adverse
personnel actions.
Thus Congress has charged the Director of Central Intelligence
with protecting intelligence sources and methods from unauthorized
disclosure, has recognized that the term "intelligence sources and
methods" encompasses an area not entirely covered in other statutes,
and has affirmed the need for such protection by providing statutory
authority for that purpose. The void in the statutory structure pro-
tecting intelligence sources and, methods is the absence of sanctions
against unauthorized disclosure which can be invoked without dis-
closing the very sources and methods whose protection is sought.
The Judicial View of Intelligence
The courts have long recognized that the secret intelligence activities
of the executive branch, though indispensable to the government, are
by their nature matters whose disclosure would be injurious to the
public. In 'the Totten case 1� compensation was sought under a secret
contract with President Lincoln for espionage activities behind Con-
federate lines. The opinion of the Supreme Court stated:
If upon contracts of such a nature an action against the government could
be maintained in the Court of Claims, whenever an agent should deem him-
self entitled to greater or different compensation than that awarded to him,
the whole service in any case, and the manner of its discharge, with the details
of the dealings with individuals and officers, might be exposed, to the serious
detriment of the public. A secret service, with liability to publicity in this
way would be impossible; and, as such services are sometimes indispensable
to the Government, its agents in those services must look for their com-
pensation to the contingent fund of the department employing them, and
to such allowance from it as those who dispense that fund may award. The
secrecy which such contracts impose precludes any action for their enforce-
' Central Intelligence Agency Act of 1949, as amended, �6, 63 Stat 208, 50
U.S.C. �403g.
"Totten v. U.S., 92 U.S. 105 (1876).
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merit. The publicity produced by an action would itself be a breach of a
contract of that kind, and thus defeat a recovery.
It may be stated as a general principle, that public policy forbids the
maintenance of any suit in a court of justice, the trial of which would in-
evitably lead to the disclosure of matters which the law itself regards as
confidential, and respecting which it will not let the confidence be violated.
On this principle, suits cannot be maintained which would require a disclosure
of the confidences of the confessional, or those between husband or wife,
or of communications by a client to his counsel for professional advice, or
of a patient to his physician for a similar purpose. Much greater reason
exists for the application of the principle to cases of contract for secret services
with the Government, as the existence of a contract of that kind is itself a
fact not to be disclosed. [Emphasis supplied.]
The Totten case marks the beginning of the juridical idea�and
fudicial cognizance of it�that there is a kind of relationship to the
state which is confidential, beyond judicial inquiry, and involving a
trust of such nature that the courts cannot aid a breach of it, even in
their solemn duty of administering justice." A secret agent is almost
impotent in his own cause; he literally cannot maintain an action
in the courts where his secret activities are germane to the case.12
Judicial Access to Sensitive Data
Present espionage laws dealing with unlawful transmission or ob-
taining of information related to the national defense 13 have been
interpreted as requiring proof of certain questions of fact; evidence
on these questions must be submitted to the jury for consideration
of its weight and sufficiency. For instance, the information betrayed
must in fact be related to the national defense and must not have
been generally available." The courts have held that a jury cannot
find on these facts unless it has access to the information allegedly
related to the national defense and hears testimony regarding its use,
importance, exclusiveness, and value to a foreign government or
'See Firth Sterling Steel Co. v. Bethlehem Steel Co., 199 Fed- 353 ( 1912), in
which the court struck documents from the record on the ground that it was
against public policy to disclose military secrets. See cases cited in note 18.
" De Arnaud v. U.S., 29 Ct. 555, 151 U.S. 483 (1894); Allen v. U.S., 27 Ct Cl.
89 (1892); Tucker v. U.S., 118 F. Supp. 371 (1954).
18 U.S.C. �4793, 794, and 798.
" U.S. v. Heine, 151 F.2d 813, 816 (1945), citing Garin v. U.S., 312 U.S. 19,
28, 61 S.Ct 429, 85 L.Ed. 488 (1941).
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potential injury to the United States." The defendant in a criminal
proceeding must likewise have access to it, since the information
itself may tend to exculpate him with respect to dealings in it" As
Judge Learned Hand said in U.S. v. Andolschek, "The Government
must choose; either it must leave the transactions in the obscurity from
which a trial will draw them, or it must expose them fully." 17
These rulings have left the government in the position of having
to reveal in court the very information it is trying to keep secret or
else not prosecute those who steal information and use it to the injury
of the nation. To invoke the law's protection of the secret, the secret
must be told.
Judicial experience with the privilege which protects military and
state secrets has been limited in this country." British experience,
though more extensive, is still slight compared to that with other
evidentiary privileges." Nevertheless, it is clear at least from the civil
precedents that the court itself must determine whether the circum-
stances are appropriate for the claim of privilege" and yet do so
without forcing a disclosure of the very thing the privilege is designed
to protect.21 The latter requirement is the real difficulty. In dealing
with it, courts have found it helpful to draw upon judicial experience
' Garin v. U.S., 312 US. 19, 30-31, supra note 14.
" U.S. v. Reynolds, 345 U.S. 1, 73 S.Ct. 538 (1953); Jencks v. U.S., supra
note 7.
"142 F.2d 503, 506 (1944).
" See Totten v. U.S., 93 US. 105,23 L.Ed. 605 (1876); Firth Sterling Steel Co.
v. Bethlehem Steel Co., 199 Fed. 353 (1912); Pollen v. Ford Instrument Co., 26
F. Supp. 58.1 (1939); Cresmer v. U.S., 9 F.R.D. 203 (1949). See also Bank Line
v. U.S., 68 F. Supp. 587, 163 F.2d 133 (1947). 8 Wigmore on Evidence ( 3d Ed.)
sec. 2212(a), P. 161, and sec. 2378( g) (5), pp. 785 et seq.; 1 Greenleaf on Evi-
dence (16th Ed.) secs. 250-251; Sanford, Evidentiary Privileges Against the Pro-
duction of Data Within the Control of Executive Departments, 3 Vanderbilt Law
Review 73-75 (1949). See also Ticon v. Emerson, 134 N.Y.S. 2d 716, 206 Misc.
727 (1954).
" Most of the English precedents are reviewed in Duncan v. Caramel, Laird &
Co., Ltd., A.C. 624 (1942). For a thorough study of the history and application
of the Official Secrets Acts see David Williams' Not in the Public Interest (London,
1965), reviewed in Studies X 3, p. 97.
"Id. at 642.
' U.S. v. Reynolds, supra note 16, at 8, citing Duncan v. Caramel, Laird & Co.,
Ltd., supra note 19, and Hoffman v. U.S., 341 US. 479 (1951).
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in dealing with an analogous privilege, that against self-incrimination.
The Supreme Court said in U.S. v. Reynolds: 22
The privilege against self-incrimination presented the courts with a similar
sort of problem. Too much judicial inquiry into the claim of privilege would
force disclosure of the thing the privilege was meant to protect, while a
complete abandonment of judicial control would lead to intolerable abuses.
Indeed, in the earlier stages of judicial experience with the problem, both
extremes were advocated, some saying that the bare assertion by the witness
must be taken as conclusive, and others saying that the witness should be
required to reveal th matter behind his claim of privilege to the judge for
verification. Neither extreme prevailed, and a sound formula of compromise
was developed. . . .
Regardless of how it is articulated, some like formula of compromise must
be applied here. Judicial control over the evidence in a case cannot be
abdicated to the caprice of executive officers. Yet we will not go so far as
to say that the court may automatically require a complete disclosure to the
judge before the claim of privilege will be accepted in any rase. It may be
possible to satisfy the court, from all the circumstances of the case, that there
is a reasonable danger that compulsion of the evidence will expose military
matters which, in the interest of national security, should not be divulged.
When this is the case, the occasion for the privilege is appropriate, and the
court should not jeopardize the security which the privilege is meant to protect
by insisting upon an emination of the evidence, even by the judge alone,
in chambers!'
Of course Reynolds was a civil case, but the evidentiary difficulty
in criminal cases is quite comparable. Thus, citing Reynolds, the
Supreme Court stated in Jencks v. U.S.:"
it is unquestionably true that the protection of vital national interests may
militate against public disrlosure of documents in the Government's possession.
This has been recognized in decisions of this Court in civil causes where the
Court has considered the statutory authority conferred upon the departments
of government to adopt regulations not inconsistent with law for. . . use . . .
of the records, papers, appertaining to his department The Attorney General
has adopted regulations pursuant to this authority declaring all Justice De-
Supra note 16, at 8-10.
In Kaiser Aluminum 17 Chemical Corp. v. U.S., 157 F. Supp. 939 (1958),
the Court of Claims held that judicial examination of a document for which execu-
tive privilege has been asserted should not be ordered without a definite showing
by plaintiff of facts indicating reasonable cause for requiring such a submission.
Otherwise, said the Court, at 949, the executive determination would be merely
preliminary and "the officer and agency most aware of the needs of government
and most cognizant with [sic] the circumstances surrounding the legal claim will
have to yield determination to another officer ( the Court) less well equipped."
"Supra note 7, at 670.
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partment records confidential and that no disclosure, including disclosure in
response to subpoena, may be made without his permission.
But this Court has noticed, in U.S. v. Reynolds, the holdings of the Court
of Appealc for Second Circuit that, in criminal causes ". . . the Government
can invoke its evidentiary privileges only at the price of letting the defendant
go free. The rationale of the criminal oases is that, since the Government
which prosecutes an accused also has the duty to see that justice is done, it
is unconscionable to allow it to undertake prosecution and then invoke its
governmental privileges to deprive the accused of anything �which might be
material to his defense. . . ." '
The loophole afforded by this evidentiary difficulty has not been
overlooked by the thief who limits his trade to information too sensitive
to be revealed. Nor is it ignored by the more imaginative amon'g those
accused of other crimes when they claim that their offenses were
committed at the behest of an intelligence agency which uses its
statutory shield to protect itself at the expense of its agent
Judicial Evaluation of Sensitive Data
It must be emphasized that undesired disclosure is only one dif-
ficulty in the submission of intelligence data to a jury. There is another
great problem, the capability of the jury to evaluate such data, often
complex and technical and often meaningful only in the context of
other sensitive information not otherwise bearing on the case.26 It
can of course be argued that juries often have to grapple with tech-
nical facts and that the law provides for assistance in such instances
in the form of expert witnesses. But in a case dealing with secret
information, resort to these legal devices merely increases the amount
of sensitive data which must be shorn of its usefulness by disclosure,
increasing the government's reluctance to prosecute and thwarting the
protective congressional intent expressed in legislation.
Some Avenues for Action
The courts have recognized that intelligence activities are con-
fidential per se and not subject to judicial inquiry. Congress, in the
National Security Act, has charged the Director of Central Intelligence
with the protection of intelligence sources and methods and has given
The quoted material from the Reynolds case appears at 345 U.S. 12.
' Compare the holding in the Kaiser case, supra note 23, on the competence of
the court to evaluate the contents of a document for which there has been a claim
of executive privilege.
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3. (Continued)
Legal Protection
him certain statutory authority and exemptions to assist him in meeting
this obligation. Yet the espionage laws and related statutes enacted
for the same or a similar purpose can often not be put to work just'
when the offense represents the greatest potential threat to the public
welfare.
There are three steps which would go far toward solving the
problems which still exist in this area. Two of them would seem to
require new legislation; the third might be accomplished, at least
with respect to CIA, by regulation under the DCI's existing authority.
First would be a criminal statute defining what is to be protected and
providing punishment for exposure. Second, this statute should also
confer injunctive authority, because prevention of exposure i,s more
to the point than punishment for violation and in many cases an
injunction might offer greater deterrence than the penal provisions
for violation. In addition, the act might provide that persons convicted
under it would forfeit retirement benefits; precedent for this exists
in 5 U.S.C. �8312, the so-called "Hiss Act"
' The third step would be a requirement by the Director that all
employees, agents, consult-nts, and others who enter into a relation-
ship with CIA giving them privity to intelligence data agree in writ-
ing to assign as of that time to the Agency all rights in anything in-
tended by them for publication based on information received in the
course of their official duties. Perhaps a similar step could be taken
by other intelligence agencies. Such agreements, along with appro-
priate regulations governing the dissemination of intelligence data,
could in themselves serve as a basis for injunctive relief, apart from
or as an alternative to the statutory provision for injunctions against
the criminal act of exposure.
Some such steps are necessary if we are to overcome the short-
comings in laws protecting intelligence information which limit prose-
cution to cases where intent is clear and where divulging information
in open court is not detrimental
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4. "CIA, The Courts and Executive Privilege," Lawrence Houston
(Winter 1973, Volume 17/4)
UNCLASSIFIED
Another privilege
claim upheld
CIA, flit, COURTS AND EXECUTIVE PRIVILEGE
Lawrence B. Houston
Over the years, CIA has had many occasions to negotiate in the various
courts on the problem of security of its records and particularly of its intelligence
sources and methods. Normally, some sort of accommodation has been reached
to cover the needs of the court and the requirements of security. Only twice
has the Agency been forced to the final step of claiming executive privilege.
Both of these occasions were in civil actions wherein the claim of privilege
is given weight by the court but does not bring about dismissal of the action
as would be the case in a criminal triaL �
The most recent case resulted in an interesting opinion by Judge Marvin E.
Frankel, the Federal District judge in question. The case arose out of an in-
surance dispute in which action was brought by Pan American Airways On
September 6, 1970, Pan American was operating a Boeing 747 airplane on
its scheduled route from Brussels, Belgium, to New York City, with a stop
in Amsterdam, Holland. On the flight from Amsterdam to London, two of
the passengers produced hand guns and grenades, forcibly took command of
the crew and the passPngers, and ordered the pilot to proceed to Beirut,
Lebanon. The hijackers, though not themselves Arabs, were working with and
for the Palestinian operation called the Popular Front for the Liberation of
Palestine (PFLP). In collaboration with other PFLP people who met them in
Beirut, they laced the aircraft with explosives during and, after a stop in the
Lebanese capital Then they caused the airplane to be flown to Cairo, Egypt,
lighting fuses just before landing to ignite the explosives. The large complement
of passengers and crew thus had scant minutes to disembark and flee as the
plane landed at Cairo, before the craft exploded, burned, and was totally
destroyed.
Pan American, of course, carried insurance coverage. This was in two
packages. The so-called "all risk" insurance was carried by a group of American
insurance companies to the full value of the plane, $24 million, and the policy
contained a "war risk" exclusion. In other words, the American companies would
not pay for loss caused by an act of war as defined in the policy. Pan American
then obtained war risk coverage in two lots, $14 million from a Lloyd's group
in London and $10 million from the United States Federal Aviation Authority.
The "all risk" defendants, were adamant that the loss was due to an act of war,
and the other two defendants were just as firm that this hijacking did not come
under the war risk exclusion. Pan American, therefore, brought suit against all
the groups, and left it to the Federal District Court in New York to interpret
the various policies.
Several large and expensive teams of lawyers started research into all
aspects of the episode and the background of those involved. Early in the
course of this preparation, Mr. Lawrence E. Walsh, representing the American
defendants, came to see me and Mr. John S. Warner, then Deputy General
CounseL He claimed that the British defendants had had the help of documents-
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4. (Continued)
UNCLASSIFIED Executive Privilege
tion from official British intelligence components to assist in building their
case and, therefore, he claimed that the American defendants had the right to
inspect any and all Amencan intelligence records in any way pertinent to the
subject. We explained the security problems involved, particularly in the source
and method area, and that these would present real obstacles to making available
intelligence documentation. As a former Attorney General, Mr. Walsh actually
had some familiarity with this subject
We did not commit the Agency to any 'production of records Mr. Walsh
subsequently obtained an order for discovery directed, among others, to the
Department of Defense, Department of State, and CIA, directing the production
of all records having to do with the episode in which the plane was destroyed,
with the complete background and history of the PFLP and a large number of
named individuals connected therewith, and with a number of other specifically
identified subjects. The only body of unclassified material that was responsive
in any way was a compilation of FBIS reports on the subject, which was offered
but not accepted by the :all risk" insurers. We asked the United States Attorney
to try to negotiate some middle position, as did State, but State finally gave
defense counsel access to its records including classified material.
A rough appraisal of what a full response to the discovery order would mean
for CIA indicated that there would be a minimiun of over 5,000 items, the
majority of them raw reports, many from highly sensitive sources, all involving
security problems to one degree or another. We also came to the conclusion that
while there was much valuable intelligence material in this, the salient facts
'pertaining to the destruction of the plane and to the PFLP were readily available
from open sources. We, therefore, felt the American defendants would not be
prejudiced in their case by failing to have CIA records. Accordingly, we entered
a formal claim of sovereign immunity in answer to the discovery order, an action
that must be taken personally by the Director. The claim was supported by an
affidavit which set forth the security problems, including the danger, particularly
in this case, to lives and well-being of sources who might be exposed through
the court process. The case was argued at great length by eminent counsel
for some of the outstanding firms in the country, as well as by the United States
Attorney.
On 17 September 1973, Judge Frankel handed down his opinion, which was
long and dealt with the issues in great detail. In short, he came to the conclusion
that the PFLP was not an organized military operation, and the hijacking was an
isolated act not related to any military operations so that it did not come within
the 'exclusion of the war risk policy and the American companies defending
were ordered to pay the judgment in full. He then dealt specifically with the
CIA claim of privilege, and his treatment is best set forth in the judge's own
words as follows:
The all risk defendants have unleashed manpower, suited to the sums
at stake, in massive, works of factual and legal research. Lavish dis-
covery has been had of State Department, FAA, and FBI documents
to learn about the PFLP, the Middle East struggles generally, and the
disputed hijacking. Several inches of secret and otherwise classified
State Department papers have been made a peculiar sort of secret annex
to the record, with counsel and the court (dubitante) submitting to
"clearance" procedures for access. All risk counsel also demanded,
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4. (Continued)
Executive Privilege UNCLASSIFIED
however, secret Central Intelligence Agency (CIA) documents, and
this agency, after some procedural rituals, interposed the "secrets of
state" privilege. Ultimate determination of the issue thus posed was
postponed until after trial. The all risk defendants at this point make
the heady claim that if all else fails, they should have judgment for this
reason against the -United States."
There is a threshold question of some magnitude whether the
problem should be considered as one of discovery against the Govern-
ment as a party The all risk defendants have, strictly speaking, no claim
against the United States, which has sold insurance to the plaintiff.
The Government's 'proprietary" role as insurer does not comfortably
or conveniently lead to the conclusion that all its agencies, however
separate, must be treated as fractions of this single "party" for discovery
purposes. It might well be held that the applicable standards for dis-
closure are those of the Freedom of Information Act and that tht all
nsk argument is ended by the duly imposed -secret" classification under
the ruling in Environmental Protection Agency v. Mink, 410 U.S. 73
(1973).
But even viewing The Government as a monolith, and applying
inter panes rules of discovery, the risk argument fails because:
(1) the claim of privilege appears to have been justified in the
circumstances, at least when measured against
(2) the trivial showing of alleged need for disclosure.
The CIA Director explained the refusal to disclose, even for in
camera inspection, on the ground that:
-The revelation of the identity of these sources to the Court or to the parties
to this litigation could result not only in their loss to the Central Intelligence
Agency for the future but also in serious physical danger to a number of
them who are risking their lives and careers to assist us."
The circumstances apparent to the court from the entirety of this case
render this a realistic and convincing concern. The setting reeks of
violence and danger. The loss of American and other lives through
terror is a vivid part of OUT evidence. But there should be no need
to linger over this. With characteristic responsibility, all risk counsel
reported during the trial that one of their witnesses had probably lied
in cross-examination, and that the explanation appeared to be potential
physical dangers to him had he done otherwise. The matter was left
at that. It seems appropriate to pay similar heed to the representation
of the CIA without yielding an iota of the court's responsibility and
power to judge for itself the grounds of a claim of privilege.
This conclusion is reached easily in this case because the asserted
needs for disclosure are shadowy and speculative at best. It is said
that CIA documents might indicate ( by hearsay, of course) payments
by Arab governments to the PFLP. But the all risk defendants had the
PLA Commanding General on the stand for days and did not even ask
about this. Moreover, other evidence adduced by the all risk defendants
showed there were no such payments, or none of consequence. It is
argued that CIA hearsay might disclose PFLP intent and "aims and
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. 4. (Continued)
UNCLASSIFIED
Executive Privilege
operations during 1970." But surely our record, including reams of
State Department hearsay, to say nothing of PFLP's non-reticent func-
tioning, is ample on that. It is argued that the all risk defendants tried
unsuccessfully to procure a witness from the PFLP, and that the CIA
files would be or show "other sources of alternative evidence." But
this persists in overlooking the hearsay rule and is otherwise a matter
of unlikely conjecture.
In short, we have here, with the perspective of a huge record,
a -formal claim of privilege set against a dubious showing of necessity."
United States v. Reynolds, 345 U.S. 1, 11 (1953) The "formal claim"
was made in a setting of substantial assurance that legitimate concerns
for security and human life were at stake. Against that were extensive
alternative sources, including broad disclosures by government agencies.
The court is led upon the record as a whole to the firm judgment that
the "intelligence" sought would not have enhanced significantly the
factual knowledge needed for this lawsuit
It is concluded, under the principles of United States v. Reynolds,
that there was no occasion for insisting upon in camera inspection of
the documents and that there is no basis either for the extraordinary
judgment the all risk insurers seek or for any other "sanctions."
It was, of course, gratifying to have the Agency claim of privilege upheld.
However, there was still one point of concern left open by this opinion. There
have been several degrees of privilege running back through legal history.
Recent discussion has tended to differ between a claim of government privilege,
which has to do with confidential communications' within the government, and
a claim of sovereign immunity which is based on security considerations per-
taining to the national interest The difference is that in the government privilege
the courts take it upon themselves to review the information to see if it is
relevant, and necessary to the case, but there is a body of law which indicates
that the claim of sovereign immunity is not reviewable by the courts. It is this
latter interpretation which we had placed on our claim. However, it will be
noted Judge Frankel took a differing view as he says:
It seems appropriate to pay similar heed to the representation of
the CIA without yielding an iota of the court's responsibility and
power to judge for itself the grounds of a claim of privilege.
Whether he meant actually court review of the material involved or whether
he had in mind some further demonstration of the need to protect the information
is not quite clear. In this case, of course, the outcome was completely satisfactory.
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5. "The Marchetti Case: New Case Law," John S. Warner
(Spring 1977, Volume 21/1)
Security by injunction
THE MARCHETTI CASE: NEW CASE LAW
John S. Warner*
The Marchetti case is truly a landmark case in the annals of the law�and it has
far-reaching implications for the Central Intelligence Agency, the intelligence
community, and the federal government as a whole, as will be demonstrated.
Actually, the legal story consists of two separate but related legal actions.
(1) The first case was initiated at the request of CIA by the United States of
America, represented by the Department of Justice. CIA sought an injunction which
would prevent a former employee, Victor Marchetti, from publishing a proposed
magazine article by enforcing the secrecy agreement he signed upon entering into
employment with CIA. After hearings, appeals, trials, and further appeals, a
permanent injunction was issued. The decision of the United States Distfict Court for
the Eastern District of Virginia in Alexandria, Va , was appealed to the U.S. Court of
Appeals for the Fourth Circuit. There the onginal decision was affirmed, and a
petition for a writ of certiorari** was filed with the U S Supreme Court. That court
declined to review the decision of the Circuit Court, which is cited as U.S. v.
Marchetti, 466F 2d 1309(1972).
(2) The second case was initiated by Alfred A. Knopf, a publisher, and
Marchetti and John D. Marks, co-authors of a proposed book, The CIA and The Cult
of Intelligence, submitted to CIA on 27 August 1973 pursuant to the terms of the
injunction issued in the first ease. This latter case, against the United States, was filed
in the U.S. District Court for the Southern District of New York. On motion of
Department of Justice lawyers, and after hearing arguments, that court ordered the
case removed to the Alexandria District Court which had heard the first ease and had
issued the injunction. The basic issue in this second case concerned the
appropriateness of the deletions CIA had made from the Marchetti-Marks
manuscript. After trial, the Alexandria District Court made a decision which was
extremely adverse to the government's position. Upon appeal, the Fourth Circuit
Court of Appeals reversed the District Court, fully approving the government's
position�i.e., agreeing with all the deletions requested by CIA This case too was
appealed to the Supreme Court, but certiorari was denied. This case is cited as Knopf
v. Colby, 509F 2d 1362(1975).
Perhaps this is the place for some background on the central figure, Victor Leo
Marchetti Marchetti served for two years, 1951-1953, in France and Germany as a
corporal in Army Intelligence, including six months of Russian Area study at the
EUCOM Intelligence School in Oberammergau. Returning to the United States to
complete his college studies, he graduated from Penn State in June 1955 with a
bachelor's degree in History (Russian Area Studies), worked three months as an
analyst at the National Security Agency, and entered on duty with CIA as a GS-7 on 3
*The author wishes to acknowledge the assistance of Lawrence R Houston and John K Greaney in
the preparation of this article
**A wnt of certiorari certifies that the Supreme Court agrees to hear the case in question, when such a
wnt is denied, it means the Supreme Court sees no reason for taking the case to the Supreme Court
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Marchetti Case
October 1955 at the age of 25 He rose relatively rapidly, primarily through the Office
of Research and Reports, but also with tours in the Directorate of Operations and the
Office of National Estimates From ONE, as a GS-14, he went to the Office of Plans,
Programs, and Budget in January, 1966, and served there for two and a half years In
July, 1968, having reached the GS-15 level, he became Executive Assistant to the
Deputy Director of Central Intelligence for a penod of nine months He was then
assigned to the Planning, Programming, and Budget Staff at the National
Photographic Interpretation Center, and five months later resigned for "personal
reasons" in September, 1969
In his assignments with the CIA PPB office, where he handled the papers for the
"303 Committee" (later the "40 Committee") which passed on Covert Action
proposals, and particularly with the DDCI, Marchetti got an overall view of the
Agency and access to sensitive information afforded to extremely few Agency
employees There was no evidence of serious disillusion or disenchantment with the
Agency before he left
After his departure from the Agency, Marchetti began writing, first a novels The
, Rope-Dancer, and then non-fiction articles concerning Agency activities In March
1972, the Agency received a draft of an article Marchetti had written for Esquire
magazine, together with the outline of a proposed book on CIA The source expressed
the opinion that the Agency might be concerned with the content, because many
aspects seemed classified and sensitive Indeed, the Agency was concerned Very
serious classified matters were discussed Included were names of agents, relations
with named governments, and identifying details of ongoing operations There were
items which might have led to the rupture of diplomatic relations between the United
States and other countries. Disclosure would cause grave harm to intelligence
activities of the U.S Government and to CIA
William E Colby, then Executive Director, telephoned me in my capacity of
Deputy General Counsel at the time, asking what legal action could be taken The
answer was that no criminal action would be successful once the matenal were
published, but this might be the proper situation for seeking an injunction Colby
asked whether we were certain of our legal position as to an injunction We noted that
extensive legal research within the Agency and consultation with the Department of
Justice had taken place five or six years before Colby asked for some documents on
this as quickly as possible, and had them within 30 minutes.
It is useful to digress to look at this novel legal approach. For years the Agency
had recognized the practical impossibility, under existing law, of applying criminal
sanctions to employees and former employees who disclosed classified information to
unauthorized persons In the mid-Sixties, however, under threat of a revealing book
by a disgruntled former employee, the lawyers looked into the possibility of civil
sanctions�namely, an injunction to enforce his contract based on the secrecy
agreement each employee signs at the beginning of his employment It was known, of
course, that various industry agreements had been enforced in the courts�agreements
that protected industrial processes and other proprietary nghts from disclosure by
employees, both dunng and after employment Why shouldn't the U.S Government
also be protected on the simple basis of a valid contract The conclusion was reached
that a court action had a good chance of success The Department of Justice was
consulted, and after thorough review agreed The pending threat went away, but the
papers were preserved against later need
What did Colby do with the documents when we produced them? He discussed
them with the then-Director, Richard Helms, who took the matter up personally with
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Marchetti Case
the President The President said he would turn this over to John Ehrlichman, then his
Counsel Helms asked CIA General Counsel Lawrence R Houston and me to go to
the White House to see Ehrlichman and discuss possible action on the proposed
article and book by Marchetti. In late March 1972 we were shown into Ehrlichman's
office in the White House In a few minutes Ehrlichman appeared, accompanied by
an assistant, David R. Young They had done their homework, knew the factual
situation, had studied the pertinent criminal law, and had the proper law books in
their hands After thorough discussion, it was agreed that the criminal statutes would
provide no remedy for the problem facing us Talk then turned to the injunction
possibility. We presented our view in favor of a try in the courts for an injunction,
conceding that there was no precedent involving the U.S Government in the case
law
Finally it was mutually agreed to have a try at an injunction Talk then turned to
the means of preparing the ea. Houston and I urged care with respect to which
Deparment of Justice attorney would handle the case, on the grounds that dealing
with classified intelligence information would require considerable understanding to
prepare a complaint, briefs, and oral argument while at the same time probecting the
sensitive aspects; this, after all, was what the case was all about He then suggested
Daniel J. McAuliffe, an attorney in the Internal Security Division of the Department
of Justice, who was on detail to the White House. Ehrlichman described McAuliffe as
very able and discreet Within a day or so, McAuliffe came to the Headquarters
Building to begin his study of the case and to start his education into the intricacies of
classification and intelligence There were to be many hours of joint study and
consultation McAuliffe was indeed a thoroughly competent professional who
performed the research and prepared the documentation which was the basis for the
subsequent court action. When it came time to go to court, the matter was turned
over to Irwin Goldbloom, another thoroughly expert and capable lawyer in the Civil
Division of the Department of Justice
One of the first problems came with the realization that if Marchetti published
the information about which we were concerned, then the injunction proceeding
would be useless Normally, in seeking an injunction, the person against whom it is
sought is served with appropriate papers and given an opportunity to be represented
before the judge. We were afraid, however, that Marchetti, if served, might
immediately get in touch with the media and broadcast the very items about which
we were concerned Accordingly, we took the backup documentation, together with
the proposed temporary restraining order, to Judge Albert V Bryan Jr., of the U S
District Court for Eastern Virginia, sitting in Alexandria We met Judge Bryan in his
chambers, showed him quotations from Marchetti's manuscript which, to us,
appeared most damaging if made public, and explained our theory of an injunction
based on the secrecy agreement We also stated that Marchetti had not been served
and explained why we came in with an ex parte proceeding under these
circumstances
Judge Bryan agreed with the argument put forward by Goldbloom and signed
the temporary restraining order without hesitation on 18 Apnl 1972 He then called in
one of the marshals and ordered him to serve Marchetti immediately with the
executed order
This set in Motion the proceedings leading to the first court hearing before Judge
Bryan, at which Marchetti was represented by counsel for the American Civil
Liberties Union The defense counsel appealed on technical grounds on an urgent
basis, and the appeal was heard within a few days by the U S Fourth Circuit Court of
Appeals sitting in Alexandria While the appellate court refused to stop the
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Marchetti Case
proceedings, they did raise some troublesome questions, particularly about Clearance
of witnesses for the defense who would.have access to the classified material They
warned that nothing could be done which could be construed as intimidating or
warning off witnesses
Some details of the actual trial are appropriate here because of their relevance to
the second ease Judge Bryan permitted the government to file classified briefs and
classified exhibits Much testimony of witnesses was in camera�court closed to the
public. The judge issued appropriate protective orders, binding on all parties and their
. attorneys, and at the close of the trial ordered all classified records sealed This sealed
record, of course, was made available to the Fourth Circuit Court of Appeals There
were affidavits and oral testimony by Agency personnel as to which matters in the
proposed Esquire article and the book outline were considered classified Judge Bryan
had some difficulty in accepting simple testimony that a matter was classified The
issue was not whether a matter had been properly classified, but rather whether it was
in fact classified at all, in instances where the defendant argued that it was not For
example, in a situation involving the true name of an agent, the judge was satisfied
when shown an acknowledgment of an assigned pseudonym on a card showmg the
agent's true name and stamped "Secret" Similar types of documents for other
situations were exhibited to support the testimony of Agency employees, and the
judge appeared satisfied as did the defendant's lawyers judge Bryan issued a
permanent injunction on 19 May and an appeal was taken
Now, what were the basic legal issues reviewed by the Circuit Court? From the
beginning, Marchetti's lawyers (from the American Civil Liberties Union) urged that
an injunction was a prior restraint in violation of the First Amendment providing that
-Congress shall make no law. . . abridging the freedom of the press" By case
law the amendment has been applied to the Executive Branch and to the courts The
Circuit Court reviewed the constitutional basis for secrecy within the Executive
Branch and its right and duty to maintain secrecy The Court went on to say that First
Amendment rights and freedom of speech are not absolute rights, and that the secrecy
agreement was a reasonable and constitutional means for the Director of Central
Intelligence to implement his statutory charge to protect intelligence sources and
methods from unauthorized disclosure In other areas, the Court said that the Agency
must review any submission within 30 days, and that Marchetti, if dissatisfied with
the Agency action, could seek judicial review This burden, the Court added, should
not be on CIA The Court went on to say.
Indeed, in most instances, there ought to be no practical reason for
judicial review since, because of its limited nature, there would be only
narrow areas for possible disagreement
The Court also held that
The issues upon judicial review would seem to be simply whether or not
the information was classified and, if so, whether or not, by prior disclosure
[by the Government], it had come into the public domain
Inasmuch as the Court held that "the process of classification is part of the
Executive function beyond the scope of judicial review," CIA would have no
obligation to establish the propriety of classification, but would be required to
establish only the fact of classification
The three judges, Clement F. Haynesworth, Harrison L. Winter, and the late J
Braxton Craven, Jr, agreed on the basic opinion except that Craven would not
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Marchetti Case
subscribe to a flat rule that there should not be any judicial review of classification As
he put it,
I would not object to a presumption of reasonableness [on the part of
the Government], and a requirement that the assailant demonstrate by dear
and convincing evidence that a classification is arbitrary and capricious
before it may be invalidated
The opinion of the Circtut Court remanded the (,..e to the District Court to limit
the injunction to classified information so that on 15 March 1973 it finally read as
follows
ORDERED
That the operative provisions of the permanent injunction entered by
this Court on May 24, 1972 be and they hereby are revised and that the
-Ordered- provisions of said permanent injunction shall now provide:
That the defendent, Victor L Marchetti, his agents, servants,
employees and attorneys, and all other persons in active concert or
participation with him, and each � of them, be, and they hereby are
permanently enjoined from further breaching the terms and conditions of
the defendant's secrecy agreement, dated 3 March 1955, with the Central
Intelligence Agency by disclosing in any manner (1) any classified
information relating to intelligence activities, (2) any classified information
concerning intelligence sources and methods; Provided, however, that this
Injunction shall not apply to any such information, the release of which has
been authorized in accordance with the terms and conditions of the
aforesaid contract, and Provided, further, that this Injunction shall apply
only with respect to classified information obtained by said defendent
during the course of his employment under the aforesaid secrecy agreement
and which has not been placed in the public domain by prior disclosure by
the United States; and it is
FURTHER ORDERED.
that the defendant shall submit to the Central Intelligence Agency, for
examination 30 days in advance of release to any person or corporation, any
manuscript, article or essay, or other writing, factual, fictional or otherwise,
which relates to or purports to relate to the Central Intelligence Agency,
intelligence, intelligence activities, or intelligence sources and methods, for
the purpose of avoiding inadvertent disclosure of classified information
contrary to the provisions and conditions of the aforesaid secrecy agreement,
and such manuscript, article, essay or other writing shall not be released
without prior authorization from the Director of Central Intelligence or his
designated representative
CIA had fashioned a workable tool in a court of law, based on a simple contract
theory. This tool could prevent serious damage to the interests of the United States or
threats to the personal safety of individuals, by acting in advance of the threatened
disclosure Even if the government were able to take criminal action on a disclosure,
the damage would already have been done Other agencies in the Intelligence
Community were mged to establish secrecy agreement procedures In the face of
increasing concern over publication of classified information, CIA had taken the
initiative in the courts and won a significant victory in a landmark legal case
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ii
The second case starts with a letter from Marchetti's lawyer dated 27 August
1973 which transmitted a proposed manuscnpt of 517 pages pursuant to the terms of
the permanent injunction issued in the first case CIA had 30 days to respond A task
force was organized with representatives from the four directorates, and at the same
tune each of the four Deputy Directors was charged with reading the entire
manuscript within a matter of days. At a meeting of the four deputies and the task
force, it was agreed that the manuscript was in fact "Top Secret�Sensitive," and
should be so marked There were other difficulties the manuscript included
compartmented information and sensitive need-to-know projects, and not all of the
task force members or Agency lawyers had the requisite clearances (which were
quickly granted) Also, some items were of prime interest to other agencies, including
State, NSA, and Navy. Excerpts were sent to other agencies as appropriate The task
force was informed that for each item adjudged as classified, the judgment would
have to be backed up with documentation The process also began of sorting out
which items would be assigned to which Deputy Director for final judgment
Colby�by now DCI�was of course kept fully informed of precisely hOw this
mammoth judgmental and mechanical task was being planned and pushed forward
There was careful consideration of which items, although classified, were so widely
known that no serious harm would result from publication. Colby made the decision
that we should proceed to list all classified items consistent with the language of the
injunction, with the view that at a later date, possibly at trial, CIA could withdraw on
the softer items I debated this with Colby�probably insufficiently and not
voCiferously enough�on the grounds that the authors and their lawyers would
publicize the items withdrawn with the simple theme that CIA had listed them as
classified and then changed its mind The inference drawn would be that CIA thereby
confirmed the validity of each item previously deleted but subsequently cleared
When, the book was published, this was precisely what happened�all of the items
which CIA first deleted and then cleared were printed in boldface type so that any
reader knew what CIA regarded as classified as of the submission of the manuscript
It is impossible to overemphasize the massive job of reviewing these 517 pages of
manuscnpt. Some reviewers had a tendency to delete three or four pages at a time so
as to drop an entire subject, when in fact deletion of a few sentences, names, or places
would have done the job. This happened particularly with the other agencies
involved, but inasmuch as,the Agency was responding on behalf of all (no volunteers
here to go on the record or to provide witnesses in court), there had to be consistency
Finally the job was done, and a letter dated 26 September 1973 was sent forward
attaching a listing of 339 deletions, referring, for example, to words three through
eight on line 17 of page 276 This was done to avoid putting the classified words in
the letter, so that the letter itself could remain unclassified for use in the open court
record. In the letter, an offer was made for a conference to ascertain if by modest word
changes some of the listed deletions could be made acceptable to CIA
Such a conference was held on 4 October 1973 with Marchetti, his ACLU lawyer
Melvin Wulf, myself as CIA General Counsel, and John K. Greaney as Assistant
General Counsel It was an all-day session which got nowhere They presented a
quantity of newspaper clippings which contained information similar to items in the
manuscnpt and urged that such information in the clippings in effect made the items
in the manuscript unclassified We countered that this was not so, and that if
Marchetti would simply attribute the information in the manuscript to the media
sources, CIA would have no problem But no, they wanted whatever authenticity
could be gamed from asserting the information as Marchetti's knowledge Other
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suggestions were made, such as deletion of names of people, substitution of a general
geographical area for a specific capital or country, or deletion of certain details of
operational projects These too were rejected, and by the end of the day it became
clear that they were not going to make any changes One can wonder whether they
came to negotiate, or simply to make a record that such a conference had been held
The Agency in the next few days considered its position on the full 339 items, and
made the decision that it would withdraw its objections to the -soft" items, which
totalled 114. Later, after a thorough review of the remaining deletions, and more
careful study by the four deputies and the lawyers as to what they would face as
Witnesses in the actual trial, CIA withdraw on another 57 items, leaving 168 deletions
on which CIA stood fast
,
Marchetti, in submitting the manuscript, had included John D Marks as co-
author Marks was a former State Department employee, who had worked in
intelligence and had signed a secrecy agreement It also developed that Marchetti had
signed a contract for the publication of the book with Alfred A Knopf, Inc
The court aspect of this second case now began with the filing of a legai action in
the U.S. District Court for the Sourthern District of New York The plaintiffs were
Knopf, Marchetti, and Marks, seeking an order which would permit publication of
the remaining 168 deleted items. One can only speculate about the motives behind
their choice of a court sheer legal tactics, easier jurisdiction in terms of the subject
matter, or physical,convernence for plaintiffs' lawyers, who were all based in New
York City. The ence law and court rules clearly favored jurisdiction where the
injunction had been issued on 15 March 1973 Upon motion and after oral argument,
the action was transferred to the Eastern District of Virginia (Alexandria) where the
first case had been tried and where it would come before Judge Bryan, who had tried
the first ence. So much for tactics or whatever
Now came the depositions preparatory for trial sworn testimony with lawyers
from both sides present for cross-examination Among the witnesses were the four
deputies, the DCI, Marchetti, and Marks Marks had been granting interviews to �
journalists and had appeared on radio and television discussing information similar to
that contained in the manuscript Again, as earlier, it was argued that because the
information was m the media it was no longer classified This was a bootstrap
operation leak information in the manuscript, and then claim it is thereby
declassified by publication. Marks, however, was put in a dilemma when asked
whether he had given specific items to the press. If he admitted it, he could be subject
to a citation of contempt under the original injunction inasmuch as he now was a co-
author, if he denied it, he would be risking perjury charges. He resorted to pleading
the Fifth Amendment on five occasions Later, at the trial, the judge took note of this,
saying, in effect, you can't have it both ways
It is worthwhile to digress here for a moment to comment on the degradation and
dilution of security that charaetenzed this entire matter Obviously Marks,
Marchetti's lawyers, and Knopf's lawyers had access to a mass of sensitive
information It should be noted that Knopf's lawyer, Floyd Abrams, voluntarily
undertook not to expose the manuscript to his client In court, not only the judge but
his clerk, the bailiff, the stenographer, and others were exposed to sensitive classified
information Papers and documents in the court and in the lawyers' offices were not
stored under the rigidly controlled conditions prevailing at CIA Nor were most of
these people trained, by experience or otherwise, in how to deal with highly classified
information and documents The crowning blow came when CIA asked the District
Court for access to the record of the first trial Back came the answer -We can't find
it" And they never have'
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Now came the tnal. It was clear from the briefs filed that the plaintiffs wished to
re-litigate the First Amendment issue It was also clear that the judge would have
none of this, but the issue was in the record for the inevitable appeal The four
Deputy Directors were witnesses and collectively covered all the 168 deletion items
They testified that the information was classified, and had been since the inception of
the program or from the witness's first contact with it, and was still classified Then
excerpts of classified documents were submitted as exhibits, heavily censored so as not
to furnish new sensitive information. The witnesses than tied each of the deletion
items to information in the various exhibits, which was the procedure Judge Bryan
found acceptable at the first trial This time, however, Judge Bryan was having even
greater difficulty in understanding the basic concept of classification and the
procedure followed He appeared to think that the government should be able to
punch a computer button that would result in a showing that a deletion had been
classified by a proper official on a specific date in the past He accepted a few
documents which specifically stated that certain types of information should be
classified at certain levels. One such document, for example, was a DCI Directive
specifying that locations of communications intelligence collection facilities \vould be
classified "Secret" One such deletion item was thus accepted by the judge, together
with an additional 25 In a decision stunning to the government, however, Judge
Bryan found that the fact of classification of the remaining 142 items had not been
proved
To CIA, it seemed self-evident that matters such as names of agents and details
of ongoing clandestine collection operations were classified In his opinion, judge
Bryan stated that it seemed to him that the four Deputy Directors were making ad
hoc classifications of material after having read the manuscript, although he
recognized that the Deputy Directors had denied this No evidence or even assertions
contradicted the four deputies. Could the judge have thought that they were lying? It
was clear that the judge simply had not comprehended the classification system
Further he had abandoned the method of proving classification which had been
acceptable to him and to the defendants at the first trial, and had also been
acceptable to the Circuit Court of Appeals In the second trial, however, he neglected
to advise the government that he had so abandoned the procedure for proof, nor did
he state what would be acceptable.
Preparations accordingly were made for the appeal The Department of Justice
lawyers who had handled the trial, Irwin Goldbloom�by now Deputy Assistant
Attorney General, Civil Division�and his assistant, David J Anderson, started writing
appeal briefs. There was the continuing close working relationship between them and,
for the Agency, John Greaney and me Greaney and I, working with the information
supplied by the four Directorates, wrote the classified briefs; The Department of
Justice lawyers wrote their unclassified briefs, then we exchanged them for comment
We all wanted to make certain that we made clear to the Circuit Court what
classification in the intelligence arena was all about The briefs and other documents
constituting the record were duly filed, consisting of several thousand pages In any
event it was an enormous record for the Circuit Court to review Oral argument was
heard on 3 June 1974 before the same three judges who had heard the first case,
Haynesworth, Winter and Craven. At the close of questioning Judge Winter made an
observation to the effect that "When this matter was before us previously, none of us
then realized how enormously complicated this matter of classification really is "This
observation clearly foreshadowed parts of the opinion, such as, in speaking of their
opinion in the first case,
. we did not foresee the problems as they developed in the District
Court We had not envisioned any problem of identifying classified
information embodied in a document produced from the files of such an
agency as the CIA . We perhaps misled the District Judge into the
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imposition upon the United States of an unreasonable and improper burden
of proof of classification
Finally, after an almost unprecedented length of time�more than nine
months�the Circuit Court on 7 February 1975 handed down its opinion, total and
complete victory for CIA and the U S. Government on the fundamental issues The
plaintiffs of course petitioned the U S Supreme Court for a writ of certiorari, but this
was denied What were the basic issues decided?
1) The court declined to modify its "previous holding that the First
Amendment is no bar against an injunction forbidding the disclosure of" classified
information acquired by an employee of the U.S Government in the course of such
employment, and "its disclosure would violate a ,solemn agreement made by the
employee at the commencement of his employment " The Court held "he effectively
relinquished his First Amendment rights"
2) The District Judge properly held that classified information
obtained by the CIA or the State Department was not in the public
domain unless there had been official disclosure of it . . It is one
thing for a reporter or author to speculate or guess that a thing may be
so, or even. . to saY that it is so, it is quite another thing for one in a
position to know of it officially to say that it is so.
3) The Court referred to.
. . the fact that Marks, on Fifth Amendment grounds, on five
different occasions declined to answer whether he was the undisclosed
source of information contained in five magazine articles offered by the
plaintiffs to show that the information was in the public domain. A
pubhc official in a confidential relationship surely may not leak
information in violation of the confidence reposed in him and use the
resulting publication as legitimating his own subsequent open and
public disclosure of this same information
4) . the individuals bound by the secrecy agreements may not
disclose information, still classified, learned by them during their
employments regardless of what they may learn or might learn
thereafter.
Also
Information later received as a consequence of the indiscretion of
overly trusting former associates is in the same category
5) The Court dwelt at some length on the well-established doctrine
of presumption of regularity by a public official in his public duty
. . in the absence of clear evidence to the contrary, courts
presume that they [public officials] have properly discharged their
official duties. . That presumption leaves no room for speculation
that information which the district court can recognize as proper for
Top Secret classification was not classified at all by the official who
placed the "Top Secret" legend on the document
The Court summarized by saying,
In short, the government was required to show no more than that
each deletion item disclosed information which was required to be
classified in any degree and which was contained in a document
bearing a classification stamp
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Marchetti Case
classified in any degree and which was contained in a document
bearing a classification stamp
This summary not only is reasonable, but also reflects exactly the standard
and procedure accepted by Judge Bryan in the first trial! How or why he rejected this
standard in the second trial, one can only wonder
6) While it is not one of the primary issues, it is still important to note what
the Court said about the deletions of additional and irrelevant information in the
documents submitted as exhibits by the government
Nor was it necessary for the government to disclose to lawyers,
judges, court reporters, expert witnesses and others, perhaps, sensitive
but irrelevant information in a classified document in order to prove
that a particular item of information within it had been classified It is
not to slight judges, lawyers or any one else to suggest that such
disclosure carries with it serious risk that highly sensitive information
may be compromised In our own chambers, we are ill-equipped to
provide the kind of security highly sensitive information should hlve
7) The action of the Fourth Circuit Court of Appeals is embodied in the
following
For such reasons, we conclude that the burden of proof imposed
upon the defendants to establish classification was far too stringent and
that it is appropnate to vacate the judgment and remand for
reconsideration and fresh findings imposing a burden of proof
consistent with this opinion .
Thus was written the penultimate chapter of the Marchetti case. The final
chapter was the drafting* of proposed findings of the District Court, which act, it was
hoped, would close the case Those readers who are lawyers can imagine the task In
any event, the detailed findings�of fact for court approval, involving some 142 specific
fact situations, were filed On 22 October 1975 a final order was issued No appeals
were filed, and the order became final It was reported in the press that in answer to a
question about contesting the "findings of fact" and the order entered by the District
Court, Knopf's lawyer answered that more than $150,000 in legal fees had been spent
and that it did not seem appropriate to contest the matter further The basic
constitutional issues were settled, and further legal action would only be nitpicking on
factual issues The ACLU also had no stomach for further legal battling The book,
meanwhile, had been published with gaps for the deletions and boldface type for the
original deletions subsequently withdrawn by the CIA
Conclusion
What had all this accomplished and what were the implications for the future'?
For the first time CIA had taken the initiative in the courts to prevent the
unauthorized disclosure of intelligence sources and methods The courts had affirmed
in the particular circumstances the most fundamental of legal principles�the sanctity
of a contract The courts had affirmed the right�and the duty�of the government to
seek enforcement of that contract to protect its secrets, i e, sensitive classified
information As previously mentioned, there was a degradation and dilution of
secunty, and we have the acknowledgment by the Circuit Court itself that" . we
are ill-equipped to provide the kind of security highly sensitive information should
have" While it was not perfect, a highly useful tool had been fashioned
*Onginally by Walter L Pforzheuner as a consultant to General Counsel
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When the Rockefeller Commission (Commission on CIA Activities Within the
United States) was established by the President on 4 , January 1975, there were
immediate discussions concerning procedures to be followed by the Commission in
protecting CIA sensitive classification information The Commission and its
professional staff were cooperative. CIA asked that all staff members sign secrecy
agreements. Bowing to the inexorable logic of the question posed by CIA of what law
or legal tool could be used to protect classified information except the secrecy
agreement, the Commission directed its staff members to sign such agreements Next
came the Senate Select Committee to Study Intelligence Activities, and the House
Select Committee on Intelligence At the request of CIA, the chairmen of the two
committees directed all staff members to sign secrecy agreements During this same
period the Department of Justice was conducting an investigation of possible crimes
by employees or former employees of CIA The Special Prosecutor investigating
Watergate was also investigating possible crimes by Agency personnel. At the request
of the CIA, the Attorney General and the Special Prosecutor directed all their
employees having access to CIA information to sign secrecy agreements While there
may have been some leaks, no books or published articles not submitted to proper
authority have appeared attributed to any of the above sources But for the Marchetti
case, it is not likely that secrecy agreements would have been obtained in all of the
above situations, and one can only speculate about possible publications
In the meantime, CIA had been working closely with the Department of Justice
on proposed legislation to provide criminal sanctions for the unauthorized disclosure
of intelligence sources and methods As a part of that legislative package there was a
provision for CIA to apply for an injunction when there were threatened violations of
the proposed law Justice for two years would not concur in this provision, arguing
that the Marchetti once established the principle of an injunction. CIA argued
strongly the well-established fact that the other ten judicial circuits were not bound to
follow the precedent established by just one circuit, the Fourth CIA wanted a firm
statutory basis for an injunction in whatever jurisdiction a new once might arise
Justice finally relented, and the President sent the legislative package forward to
Congress with the injunction provision This was done in February 1976 with a
recommendation for Congressional approval No action was taken in 1976, but it is
hoped there will be some action in 1977
As a result of the various investigations of intelligence activities, the President on
19 February 1976 issued Executive Order 11905, entitled -Uruted States Foreign
Intelligence Activities - The order was to clarify the authority and responsibilities of
intelligence activities�in other words, a listing of do's and don'ts Section 7(a) is
pertinent here.
(a) In order to improve the protection of sources and methods of
intelligence, all members of the Executive Branch and its contractors given
access to information containing sources and methods of intelhgence shall,
as a condition of obtaining access, sign an agreement that they will not
disclose that information to persons not authonzed to receive it
Section 7(c) provides that when there is a threatened unauthorized disclosure of
intelligence sources and methods by a person who has signed a secrecy agreement, the
matter will be referred -to the Attorney General for appropriate legal action,
including the seeking of a judicial order to prevent such diselosure -
Section 7(a) directs all intelligence agencies to do what CIA had done since it was
established on 18 September 1947 Section 7(c) directs all agencies to do what CIA
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had taken the initiative to do nearly four years ago�i.e., take a prospective violator of
the secrecy agreement like Marchetti to court to prevent disclosure
I feel that the above paragraphs under the heading of "Conclusion" show vividly
and graphically the impact of the Marchetti case, not only as a legal precedent but
also as a guideline for the conduct of intelligence on a day-to-day basis No one will
claim that the Marchetti case offers a panacea to prevent disclosure of classified
intelligence information. The United States needs criminal sanctions, as discussed
earlier, for unauthorized disclosure of intelligence sources and methods where the
injunctive remedy cannot or has not been applied (This is clearly demonstrated by
the recent Department of Justice announcement that Philip Agee will not be
prosecuted, should he return to the United States, for publication abroad of a book
replete with details of Agency operations) If an author publishes a book or article
prior to submission to CIA for review as to classified information, obviously injunctive
relief is valueless Current laws provide no usable criminal sanctions, thus the need for
the "sources and methods" legislative package.
Nevertheless, the Marchetti case has provided an extremely valuable legal tool,
helping the Agency in working with would-be authors and also helping to' improve
security in Agency relationships with other government entities and agencies, the
Congress, and the Judiciary. 4
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6. "The CIA and the Law: The Evolving Role of the CIA's General Counsel,"
Daniel B. Silver (Summer 1981, Volume 25/2)
THE CIA AND THE LAW:
THE EVOLVING ROLE OF THE CIA'S GENERAL COUNSEL
Daniel B. Silver
As with many other aspects of the intelligence business the role of the General
Counsel of the Central Intelligence Agency was affected profoundly, and perma-
nently, by the exposures and investigations of the mid-70's. The ordeal of the
Intelligence Community in the past decade can be viewed in large perspective as an
unprecedented experiment in subjecting the intelligence activities of the United States
to the process of oversight and the comprehensive rule of law. Although the exact form
,
of legal regulation of intelligence activities remains subject to modification, the broad
lines are firmly established: extensive congressional oversight; an expanded role of the
Attorney General in approving the use of -intrusive- techniques of investigation, and
the existence of a pervasive, written�and, to a large degree, publicly debated�code
of rules for the conduct of intelligence activities This code is composed of statutes,
Executive orders and internal Agency regulations Of necessity, the CIA General
Counsel has played, and will continue to play, a central role in the working out of this
uniquely American encounter between the legal system and the Intelligence
Community
Espionage and the law lie in the same bed uneasily, if at all. The activities of the
CIA, after all, are conducted predominantly abroad, frequently in violation of the
laws of the countries in which they take place. Both at home and abroad, much of the
CIA's activity necessarily takes place in secret Secret law generally is deprecated by
legal philosophers; secret legal proceedings fit uncomfortably with our notions of legal
process; and, to an increasing degree, secrecy in public affairs is viewed as contrary to
the spirit of our political system. Thus, the Agency and its activities are by the very
nature of things in a state of almost constant tension with the normal conditions of
American law and government.
Notwithstanding, the CIA always has maintained a degree of concern with
legality that probably differs significantly from any other intelligence service in the
world This is not surprising in view of the fact that CIA drew heavily in its early days
from the American legal establishment and that lawyers have continued to be well
represented in the ranks of its operating officers, as well as in the Office of General
Counsel. As best I can judge from the historical record and the files of the Office of
General Counsel, it would be erroneous to view the CIA in the pre-Church Committee
period as an agency that considered itself outside the law or acted in a lawless manner
To the contrary, the Agency's lawyers and senior officials tried to conform its activities
to the law as they understood it, a difficult task given the sparse sources of legal
authority.
Nevertheless, it is fair to say that, like the rest of the Agency, the pre-Church
Committee Office of General Counsel operated in a vastly different world than
prevails today. It was a world in which the demands of external accountability were
very few. In contrast, today the Agency exists in a permanent spotlight of external
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All concerned will profit
scrutiny, exercised by a variety of entities the two permanent congressional commit-
tees on a broad scale and other committees of the Congress on an ad hoc basis, the
Intelligence Oversight Board, Justice Department and White House within the
Executive Branch, and, perhaps most important, the press, whose unremitting
examination of the Agency is aided by a flood of information coming from leaks, the
publications of former employees and the products of the Freedom of Information
Act It is safe to assume that the Agency's former relative insulation from outside
scrutiny and pressure, having been breached, can never be restored
The profound change that has occurred in recent years is manifested in the
establishment of a detailed (and, to a large degree, public) legal code for the conduct
of intelligence activities, constituted in large part through Executive order and
internal Agency regulations. This code has been supplemented in several key respects
by legislation, notably the Foreign Intelligence Surveillance Act of 1978 (FISA), which
regulates intelligence-related electronic surveillance activities in the United States, and
the Intelligence Oversight Act of 1980 (enacted as part of the Intelligence Authoriza-
tion Act for FY 1981), which codified the oversight relationships between the
intelligence agencies and the oversight committees in the Congress For the first time
in Amencan history, there exists a substantial body of publicly available legal rules
that purport to govern the conduct of intelligence activities in the United States and
abroad by U S intelligence agencies There is an even more voluminous body of
implementing Agency regulations Not least of all, there is an intelligence court,
established under the FISA, which deals only with intelligence-related electronic
surveillance and conducts all its activities in secret It remains to be seen whether this
court will serve as a model for future expansion of Judicial involvement in intelligence
activities.
Impact on the Office of General Counsel
The events of the last decade have led to a significant change in both the
responsibilities of the General Counsel and the duties and composition of the Office of
General Counsel One clear indicator of this change is size In 1980 the office had
more than three times the number of lawyers it had had only six years earlier
This expansion, which started in mid-1974, is attributable to many causes In part,
it reflects the impact of the 1974 amendments to the Freedom of Information Act and
the dramatic growth thereafter in litigation affecting the Agency (In the thirteen
years following the Agency's establishment, there were two cases to which the Agency
was a party, in contrast, today there are more than 180) In part, it reflects the
expanding relationship between the Intelligence Community and the Congress, in
which the Office of General Counsel plays a significant role Over and above these
factors, however, it reflects an important evolution in legal regulation of intelligence
activities and in the roles of the General Counsel in the following areas.
a The General Counsel is the Agency official principally responsible for
developing Agency-wide rules and regulations governing intelligence activities,
as required by Executive Order 12036, and in negotiating the Agency's position
on these rules with the Attorney General, whose approval is required under the
Executive Order
b The General Counsel has been given oversight responsibilities, under
both Executive Order 12036 and its predecessor, Executive Order 11905, to
report to the President's Intelligence Board on intelligence activities raising
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All concerned will profit
questions of legality or propriety In addition, the General Counsel must
Counsel the DCI concerning his responsibilities to report to the Congress, first
under Executive Order 12036 and now under the recently-enacted Intelligence
Oversight Act of 1980
c The General Counsel is required to ensure the legality and propriety of
the Agency's activities It is particularly important in a time of increasing
personal liability of government officials, and against a backdrop of cnminal
prosecutions of former senior intelligence officials, to ensure that potentially
controversial activities are carried out in a fashion that will provide maximum
legal protection to Agency officers
The Agency's General Counsel faces formidable challenges in trying to discharge
and reconcile these responsibilities One is simply that of magnitude The legal
problems and involvements of the CIA are massive both in number and complexity.
Even as the number of litigated ences has grown, the predominant character of Agency
litigation concurrently has shifted from routine FOIA eases to more esoteric areas of
the law, such as enforcement of the Agency's secrecy agreement or, to eite a pending
case, a challenge to the legality of the Agency's alleged provision of overhead
photography to the Environmental Protection Agency for regulatory enforcement
purposes At the same time there has been a great increase in the Agency's
involvement in criminal cases as a potential source of information sought by either the
government or the defense, or both
In all of this litigation, the main role of the Office of General Counsel is to ensure
that the Agency's interests are properly represented, or taken into consideration, by
the Justice Department This is not always easy. It requires that Agency lawyers stay
abreast of all developments in a ease, control the use and disposition of Agency
information and be sufficiently steeped in the relevant law to be able to persuade the
Justice Department to pursue the legal course that will contribute to development of
the law in the manner most conducive to the Agency's interests Most of the cases in
which the Agency is involved pit one public interest against another, as, for example,
when the interests of criminal prosecution come into conflict with the need to protect
national security information Thus, officials within the Justice Department, or other
departments and agencies affected, frequently have strongly held views opposed to
those of the Agency Confronting these policy differences�usually in a context where
Agency lawyers feel that the Agency simply cannot affort to lose�requires advocacy
that is forceful but that does not lead to a breach in the good working relations with
the Justice Department which it is essential to maintain
Litigation frequently receives the most attention, but it is by no means the sole
claim on the time and energies of the Office of General Counsel. At least as important
as defending the litigation of today is to prevent the potential litigation of tomorrow
Indeed, probably the most important responsibility of the Agency's lawyers is to
ensure that the Agency's potential for the effective accomplishment of its mission is
not impaired by legal difficulties in the future or by events that could provoke a recur-
rence of highly destructive investigations and criticisms There is no way to practice
preventive law, or to ensure the legality and propriety of Agency activities, in a
passive mode The Office of General Counsel must make sure that it is sufficiently
informed of existing and proposed activities to be in a position to point out legal pit-
falls In addition to purely legal considerations, the General Counsel must play a
role�for which he is well suited as one of the Agency's principal bridges to the
-outside world--in discerning and calling attention to proposed activities which,
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All concerned will profit
although within the bounds of legality, could expose the Agency to criticism
disproportionate to the value of the intelligence objective All this requires a degree of
aggressiveness, principally in educating the clients to the ways in which lawyers can be
useful ,
A second challenge is that the roles currently imposed on the General Counsel
require maintaining a careful balance between zeal as an advocate and objectivity as
an instrument of internal oversight Traditionally, a lawyer's principal loyalty is to his
client, in this case the Agency Obviously, the General Counsel cannot properly
discharge his function unless he is a strong advocate for the Agency's interests This
advocacy role has been of particular importance during a period in which the Agency
was encountering severe hostility and criticism, hot only from the press and the
Congress, but from within the Executive Branch.
Beyond the advocacy role, however, all lawyers owe certain obligations to, the
public good (for example, no lawyer knowingly can permit perjury by his client), and
government lawyers, in particular, owe a duty to the public which is the ultimate
client In the case of the CIA General Counsel, these inchoate obligations have been
supplemented by Executive order provisions that clearly were intended to make the
General Counsel an instrument of internal oversight. The internal oversight role poses
a difficult balancing act whose difficulty has been intensified by widespread
misunderstanding of what is involved. Under Executive Order 12036, the General
Counsel is required to report to the Intelligence Oversight Board all Agency activities
-that raise questions of legality or propriety "This language obviously goes far beyond
requiring the reporting of undoubted illegalities It was intended to keep the Board
informed of a range of ongoing activities found to be legal or proper but raising
significant questions, so that the Board in turn could keep the President informed of
how well the system of regulation was working and what sort of activities the
intelligence agencies were able to conduct under the Executive Order. Notwithstand-
ing the fact that the reporting is only within the Executive Branch, to a body with a
very good record of . discretion, and for the sole purpose of keeping the President
informed, it is apparent that many Agency officers attach opprobrium to the reporting
of an intelligence activity. This view may be attributable to the circumstances in
which the Board was created (i.e, as a reaction to the investigations of the mid-70's),
but it is nonetheless a misunderstanding. Reporting to the Board is not the same as put-
ting intelligence officers -on report" Unless an activity is reported as a clear violation
of the, rules, reporting connotes no more than that the activity raises interesting
questions�in many enses questions of whether the rules under the Exective Order are
not excessively restrictive During my tenure as General Counsel, I have used the
reporting requirement as a mechanism for attempting to give the Board a fair and
balanced picture of both the successes and failures of regulation under Excutive Order
12036, in the hope that the imperfections in the system would be conveyed to the
President and ultimately create a climate in which improvements could be made
where needed
No amount of formal legal rule can withstand massive repudiation by those
affected. Thus, it is not sufficient, in my view, for the Office of General Counsel
simply to rest on the powers and responsibilities formally attributed by law or Agency
regulation Instead, the Agency's lawyers must earn the trust and confidence of
Agency components and thereby ensure that the Office of General Counsel retains the
practical elements it needs to do its job broad insight into operational activities,
ongoing access to relevant information, and an ability to indentify 'potential problems
early enough to practice preventive, rather than merely reactive, law
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All concerned will profit
There is no magic formula for achieving this result I suggest that it is most likely
to occur if the Agency's lawyers view their mission as congruent with the Agency's.
The Office of General Counsel exists to help the DCI, the Intelligence Community
Staff, the Directorate Of Operations and other components perform their authorized
functions The contribution the Office of General Counsel can make to that effort is to
ensure that the Agency's mission is not impeded by avoidable legal difficulties, that
individual officers are protected against risks of civil and criminal liability; and that
unavoidable legal intanglements, such as lawsuits against the Agency, are handled with
as little disruption of Agency activities as is possible In short, it is incumbent on the
General Counsel and his staff to demonstrate to the Agency, through example and per-
suasion; that adherence to law is in everyone's )pest interest and that careful regard for
legality is not synonymous with obstructionism
Afterword: The Future of Regulation
Judging from the large number of complaints one hears, there is little need to
belabor the point that the pervasiveness 'of legal regulation has wrought profound
change in CIA There is no doubt that this change is widely perceived in the Agency; it
is also misunderstood by many as imposing restrictions and limitations that
substantively prevent the accomplishment of the Agency's mission In fact, the
substantive restrictions are far fewer than many would think In extensive discussions
with operating officials at Headquarters and in the field, I have been struck
repeatedly with the fact that most of the specific cases cited, in which legal restrictions
were alleged to impede necessary operations, turned out to relate to Executive Order
12036 or the Agency's implementing regulations Instead, they related to internal
Agency or Directorate of Operations policies, not required by law Thus, in my
opinion, it is not fair to indict the system of legal regulation, or the lawyers who
administer it, as a major substantive impediment to the accomplishment of the
Agency's mission There have been very few cases (although those few were
distressing) in which worthwhile intelligence operations proved to be absolutely
impossible from a legal point of view.
Moreover, the beneficial aspect of the present system far outweighs the
disadvantages This beneficial aspect is the provision of legal certainty and protection
to intelligence officers who otherwise would have to operate at great personal legal
risk or not operate at all. The trend in federal law has been towards expanding
personal liability of government officials for their acts, under evolving standards of
behavior that expose officials to considerable hindsight criticism for actions that may
have been assumed in good faith to be legal at the time they were carried out. The
existence of a pervasive system of rules deriving from the authority of the President
(and, in the race of electronic surveillance in the United States, from statute) renders it
unlikely that any intelligence officer could be prosecuted for conducting an activity in
accordance with those rules One of the most salutary features of the existing system of
regulation is the requirement for written senior-level approval of most activities
carried out in the United States or directed at U.S persons abroad Again, this "paper
trail" insulates the officer in the field from exposure to liability and places
accountability at the senior levels of the Agency Even the most senior officials,
moreover, can expect to be safe in approving matters within the scope of existing rules
upon advice of the Agency's General Counsel In other words, the current regulatory
system, if it works properly, should leave no one but the General Counsel exposed to
the risk of recrimination and liability That is a risk the General Counsel should
shoulder willingly, if given the authority and responsibility to do the Job properly.
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All concerned will profit
Despite the foregoing, the system in its present form fairly can be criticized for
laying the hand of bureaucracy too heavily on an activity that requires flexibility and
a capacity for quick reactions The endeavor to apply the rule of law to intelligence
activities has been an experiment So far that experiment has erred in the direction of
regulating too many aspects of the intelligence process and requiring too many
bureaucratic approvals This is clearly recognized by the Agency's lawyers, who have
been in the forefront of the effort to modify Executive Order 12036 and to simplify
the Agency's implementing procedures In my view, the guiding factors in this effort
should be selectivity and realism We should select those aspects of intelligence
activities that pose the greatest potential threat to individual liberties or privacy and
make sure that we have clear and easily understandable rules to guide Agency officers
in these danger areas Given understandable guidance, I am convinced that Agency
officers will be zealous in their desire to protect the legitimate rights of Americans and
reluctant to repeat past experiences in which the Agency may have strayed from its
classic mission Second, such rules as we have must be realistic There is little point in
having volumes of Agency rules and regulations that are beyond the capability of
officers to assimilate and that in many cases, for security reasons, cannot be available
physically to officers in the field who need them the most Rules and procedures
whose complexities lead to paralysis simply are unacceptable, they do not reflect a'
proper balance between the intelligence needs of the United States and the
constitutional and privacy concerns of our citizens
� One of the most encouraging developments of the last several years is that I
perceive a growing recognition of these essential points in the Agency, the Intelligence
Community and the concerned public (excluding the radical fringes of both extremes)
On the side of intelligence officers, I think there is growing acceptance that a system
of legal regulation can be a benefit rather than the contrary. In the rest of the
Administration, in the Congress and in the responsible sectors of the public, there is a
growing recognition that legal regulation of intelligence activities must not be guided
by the counsels of perfection This recognition has led to the virtual disappearance of
strong pressures for a comprehensive -charters- bill that would purport to regulate all
aspects of intelligence activity in great detail The Carter Administration and the
Senate Select Committee on Intelligence tried for three years to create such a bill and
failed abysmally I doubt that this naive venture will be resumed with any enthusiasm
in the near future
Today, the climate seems propitious for a helpful readjustment of the Executive
Order on intelligence activities and the Agency's implementing procedures, but
without strong pressure from within the Intelligence Community to discard the
structure of legal regulation in its main features Intelligence officers in large numbers
have come to recognize that sensible rules and procedures are beneficial Having
witnessed the unedifying spectacle of the Felt-Miller trial, in which two former senior
FBI officials were convicted of crimes because of inability to point to clear
authorization for what they did, few intelligence officers are willing to run the risk
that they too will become the victims of some future revisionist spasm in our national
history (The fact that President Reagan has pardoned Messrs Felt and Miller does not
appreciably reduce, in my view, the chilling effect this case will have on intelligence
officers) I am persuaded that rules and regulations can be established to protect the
rights of Americans, as well as afford equity to Agency officers, consistent with the
Agency's needs for speed and flexibility, and that all concerned will profit as a result
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7. "National Security and the First Amendment," John S. Warner
(Spring 1983, Volume 27/1)
Judicial views create a balance
NATIONAL SECURITY AND THE FIRST AMENDMENT
John S. Warner
The title of this paper is deliberately chosen to place national security
first This is not to say that the First Amendment may be ignored in national
security legal matters. Rather, it is to put some perspective on the fact that the
U.S Supreme Court has consistently viewed First Amendment issues when in
a national security context in a manner different than such issues in law
enforcement or other domestic settings Also, in other situations, the U.S.
Supreme Court has shown considerable deference to powers of the President
in the foreign affairs and foreign policy arena, and especially so where the
intelligence function is involved.
In order to be precise and avoid confusion in the mind of the reader
whenever the term intelligence is used herein, it is referring to foreign
intelligence, either the product itself or activities directed at foreigners (or
agents of a foreign power) to gain information either of a positive nature or
counterintelligence information. It does not encompass collection of informa-
tion for law enforcement purposes
The Center for Law and National Security, University of Virginia, School
of Law held its First Annual Seminar on 8-11 January 1982 at St. Thomas,
United States Virgin Islands. That seminar was co-sponsored by the Center
and the Standing Committee on Law and National Security and the Interna-
tional Law Section of the American Bar Association The subject of the
seminar was -The First Amendment and National Security" Hence this
paper, and its title as modified.
Some of the special interest groups represented at the seminar clearly
asserted that constitutional rights, i.e, -the law- was absolute and immutable,
failing to distinguish or even recognize that -national security- could in any
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National Security
way impact on such rights Analogies were drawn and precedents cited from
case law in many situations where there were no -national security- factors It
is the purpose of this article to demonstrate that the presence of -national
security- considerations leads the Judiciary to conclusions in constitutional
rights cases which would not be reached absent such -national security"
factors In other words, such considerations have led to Judicial views which
create a balance between -national security- imperatives and constitutional
rights, the latter have been found not to be absolute
There will follow apparently lengthy quotations from Judicial cases This
is believed essential so that the reader can develop a reasoned concept of what
our courts have been trying to tell us for two centuries, that -national security"
is Just as much a part of our Constitution as are the pnvileges and rights
afforded our citizens The Constitution also places heavy responsibilities on the
Executive to preserve and protect -national security" While we find no neat
or clearly delineated definition of -national security,- we do see sharp
distinctions drawn between foreign policy activities and domestic security.
CONSTITUTIONAL ORIGINS OF NATIONAL SECURITY
It is appropriate to discuss the meaning of -national security- in the
framework of law We first look to the words of the Constitution of the United
States The preamble speaks of insuring -domestic tranquility- and providing
for -the common defence.-
Article II, Section 1, provides, -The executive power shall be vested in a
President of the United States of America "Section 2 of that Article provides,
-The President shall be Commander in Chief of the Army and Navy of the
United States .. and that, -He shall have Power, by and with the advice
and consent of the Senate, to make Treaties, provided two thirds of the
Senators present concur,
Generally overlooked in discussing -national security- is Article I, Section
9, Clause 7 of the Constitution which provides
-No Money shall be drawn from the Treasury, but in Conse-
quence of Appropriations made by Law, and a regular Statement and
Account of the Receipts and Expenditures of all public Money shall
be published from time to time"
What does this clause have to do with -national security-2 The last four words
of Clause 7 were added as an amendment to permit a secret contingent fund
for the President to expend for intelligence purposes and for delicate foreign
activities
A. Halperin v. Central Intelligence Agency, 629 F. 2d 144, (DC Cir. 1980).
History is replete with examples of kings, sovereigns, and heads of nations
using secret money to hire spies and to conduct delicate foreign relations The
success of these activities depended upon maintenance of secrecy not only in
the activities themselves but in accounting for the funds necessarily expended
for such activities
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National Security
There is an excellent historical review of the last four words, -from time
to time," of Clause 7, and their intent and purpose to permit continuation of a
secret contingent fund for the President That review is contained in Halperin,
decided in the United States Court of Appeals for the District of Columbia
Circuit on 11 July 1980 Those four words were proposed by James Madison as
an amendment to Clause 7 during the final week of the Constitutional
Convention Judge Wilkey in the Halperin orimion quotes Madison at the
Virginia ratifying convention on 12 June 1788, -That part which authorized
the government to withhold from the public knowledge what in their
judgment may require secrecy, is imitated from the confederation
Wilkey then states, "Madison's language strongly indicates that he believed
that the Statement and Account Clause, following his amendment, would
allow government authorities ample discretion to withhold some expenditure,
items which require secrecy
Judge Wilkey in continuing his review states, "First, it appears, that
Madison's comment on governmental discretion to maintain the secrecy of
some expenditures, far from being an isolated statement, was representative of
his fellow proponents of the 'from time to time provision Second, as to what
items might legitimately require secrecy, the debates contain prominent
mention of military operations and foreign negotiations, both areas closely
related to the matters over which the CIA today exercises responsibility."
Judge Wilkey then summarizes, "Viewed as a whole, the debates in the
Constitutional Convention and the Virginia ratifying convention convey a
very strong impression that the Framers of the Statement and Account Clause
intended it to allow discretion to Congress and the President to preserve
secrecy for expenditures related to military operations and foreign
negotiations"
The review by Judge Wilkey then finds -yet further confirmation in the
historical evidence of government practices with regard to disclosure and
secrecy both before and after the enactment of the Constitution" It is then
pointed out that "our nation's earliest intelligence activities were carried out
by the Committee of Secret Correspondence of the Continental Congress."
That Committee was created by the Continental Congress on 29 November
1775, and the Congress resolved to provide for expenses incurred by the
Committee in sending "agents The Wilkey opinion states, "The Committee
exercised broad discretionary power to conduct intelligence activities indepen-
dent of the Continental Congress and to safeguard the secrecy of matters
pertaining to its agents The opinion states further, -The importance of
total secrecy in intelligence matters was appreciated in this era at the highest
levels "The opinion then quotes from the increasingly well-known letter of 26
July 1777 which General Washington wrote to Colonel Elias Dayton issuing
orders for an intelligence mission
"The necessity of procuring good Intelligence, is apparent and
need not be further urged All that remains for me to add is, that you
keep the whole matter as secret as possible For upon secrecy, success
depends in most Enterprises of the kind, and for want of it, they are
generally defeated .
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National Security
The Wilkey opinion points out that -as commander-in-chief of the
colonial armies, Washington made full provision for intelligence activities and
for proper funding" Considerable details are then set out in the opinion
quoting from a letter to Washington from financier Robert Morris, member of
the Committee of Secret Correspondence, dated 21 January 1788 That letter
discloses that there was provided a cash account prior to specifying particular
needs and a practice of drawing the funds in favor of a member of
Washington's family in order to conceal the ultimate recipient of the funds
The Wilkey opinion then states, "Rather than viewing such arrangements as
devious or criminal, it is clear that our highest officials in the War for
Independence viewed them as entirely propee and moreover essential to the
success of their enterprise
It is then pointed out in the opinion that when the Constitution became
effective in 1789, secret funding for foreign intelligence activities was
formalized in the form of a -contingent fund- or "secret service fund" for use
by the President. In a speech to both Houses of Congress on 8 January 1790,
President Washington requested -a competent fund designated for defraying
the expenses incident to the conduct of our foreign affairs." By the Act of 1
July 1790 (1 Stat 128), Congress responded by appropriating funds for
"persons to serye the United States in foreign,parts " By that Act there was
required of the President a regular statement and account of the expenditures,
but provision was made for -such expenditures as he may think it advisable
not to specify" This statute was re-enacted by the Congress on 9 February
1793 (1 Stat. 299) authorizing funds for the financing of secret foreign affairs
operations While the President was required to report eipenses of "inter-
course or treaty" with foreign powers, the President or the Secretary of State
could make secret expenditures without specification upon execution of a
certificate for the amount of the expenditure and such certificate to be
deemed a "sufficient voucher" for the sums expended
Such authority has continued to exist in one form or another throughout
the existence of our nation. Current law provides such authority to the
Director of Central Intelligence, 50 U.S.C.A 403i, (1949)
-The sums made available to the Agency may be expended
without regard to the provisions of law and regulations relating to the
expenditure of Government funds, and for objects of a confidential,
extraordinary, or emergency nature, such expenditures to be ac-
counted for solely on the certificate of the Director and every such
certificate shall be deemed a sufficient voucher for the amount
therein certified"
Similar authority exists with respect to other government officials Section
107 of Title 31 of the U S Code authorizes the Secretary of State to certify
expenditures with respect to -intercourse or treaty with foreign nations "(This
language is identical with the 1790 and 1793 statute mentioned earlier.) By 28
U.S C.A. 537, the Attorney General may certify expenditures of the Federal
Bureau of Investigation for -expenses of unforeseen emergencies of a confi-
dential character,.. "Section 2017(b) of Title 42 of the U S Code authorized
similar certification of expenditures in the atomic energy area by the
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National Security
Department of Energy Similar authority is vested in the Secretary of Defense
and Secretaries of the military departments by 10 U S C.A 140
Ha/pertn involved a Freedom of Inforintion Act (FOIA) request for
Central Intelligence Agency documents detailing legal bills and fee agree-
ments with private attorneys retained by the Agency. The Agency claimed
exemption from disclosure under FOIA pursuant to section 102(dX3) of the
National Security Act (50 U S C 403(dX3) 1947) which charges the Director of
Central Intelligence with responsibility -for protecting intelligence sources
and methods from unauthorized disclosure.- The plaintiff argued that such
statute was violative of the -statement and, account- Clause 7, Section 9,
Article I of the United States Constitution Based on the historical review
above, Judge Wilkey for the Court concluded, -that the Statement and
Account Clause does not create a judicially enforceable standard for the
required disclosure of expenditures for intelligence activities.- And". it is a
nonjusticiable political question. Courts therefore have no jurisdiction to
decide whether, when, and in what detail intelligence expenditures must be
disclosed."
B. Totten.v. United States, 92 U.S. 105, (1875).
While we need not deal in detail with all manifestations of Presidential
responsibilities and powers under the Constitution, it is useful to look at some
views as expressed by the United States Supreme Court Probably, the earliest
pertinent case is Totten Here, recovery was sought as compensation for
services rendered under an alleged contract with President Lincoln, made in
July 1861, by which claimant was to proceed to the South and ascertain troop
and fortifications information. In other words, he was a paid spy
The Supreme Court said it had no difficulty as to the President's authority
and that he was -authorized during the war, as Commander-in-Chief of the
armies of the United States, to employ secret agents . and contracts to com-
pensate such agents are so far binding upon the government as to render it
lawful for the President to direct payment of
the amount stipulated out of the contingent
fund under his control" The Court objected, . � , ..
however, to the filing or maintenance of such a
suit in a court of justice The Court then stated
that the service under the contract was a secret,
service, with the information sought to be
obtained clandestinely, and to be communi-
cated privately Further, the employment and
the service were to be equally concealed and
both employer and agent must have under-
stood that the lips of the other were to be
forever sealed -This condition was implied from the nature of the
employment, and is implied in all secret employments of the government in
time of war, or upon matters affecting our foreign relations, where a disclosure
of the service might compromise or embarrass our government in its public
duties, or endanger the person or injure the character of the agent.-
. ...ft ,,.
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National Security
Totten continues, "The secrecy which such contracts impose precludes
any action for their enforcement," And " public policy forbids the
maintenance of any suit in a court of justice, the trial of which would
inevitably lead to the disclosure of matters which the law itself regards as
confidential, and respecting which it will not allow the confidence to be
violated"
It is to be noted that no statutes are cited in the opinion There is
reference to the contingent fund which is fully discussed in Halperin above
There is reference to the Constitution by implication by the Court's reference
to the role of the President as Commander-in-Chief Here then is Supreme
Court recognition of the inherent power of. the President to act in national
security matters, i e, to hire spies and conduct foreign relations and to do so
secretly, and that such acts do not become a justiciable issue
It appears that Totten in saying "matters which the law itself regards as
confidential" is taking judicial notice, aided by the Constitution and ptovision
of the contingent fund by the Congress, of required secrecy thus denying the
traditional rights of contract under the common law to be heard by the
judiciary
C. DeArnaud v. United States, 151 U.S. 483, (1894).
. A somewhat similar case came before the U S Supreme Court in
DeArnaud This case arose out of Civil War services by DeArnaud for which
he was paid by Major General Fremont, signing a receipt, dated 23 October
1861, which stated in part "for account of secret service rendered to the
United States" While the Court disposed of the case on the basis of operation
of the statute of limitations, nevertheless it alluded to Totten by stating it
would be "difficult for us to point out any substantial differences between the
services rendered by Lloyd (in Totten) and those rendered by Arnaud"
� The time spent on Totten (and DeArnaud) is worthwhile since it is the
earliest direct expression by the Supreme Court, and Totten has been
repeatedly cited in cases up to modern times with no deviation in the thrust of
its doctrine The Totten case (and DeArnaud) and the historical review in the
Halperin case vividly and amply demonstrate that intelligence and foreign
affairs activities, and the necessity for maintenance of secrecy, were an
integral part of the framing of the United States Constitution Equally
demonstrated are the inherent powers of the President to conduct or authorize
such activities With many of the Framers involved, our first Congress acted to
provide secret contingent funds by law and succeeding Congresses have
provided similar funds Thus, secret intelligence, secret foreign activities, and
secret funds are a fundamental and essential part of national security Any
attempt to gauge the application of Constitutional protections and privileges
without considering national security factors which may be involved is truly to
dismiss what in fact is part of our law
It is now time to look at two of the leading U S Supreme Court cases con-
cerning the President's authority and responsibility in foreign affairs and
intelligence matters These cases are repeatedly cited when -national security"
elements are involved in litigation
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National Security
D. United States v. Curtiss-Wright Export Corp. 299 U.S. 304, (1936).
At issue here was the validity of a Presidential proclamation issued
pursuant to a Joint Resolution of Congress authorizing the President to
proscribe arms sales and exports to foreign countries, violation of which
constituted a criminal offense It was argued by defendants that this was
improper delegation by the Congress of its functions ,to the Executive The
Court discussed -the differences between the powers of the federal govern-
ment in respect of foreign or external affairs and those in respect of domestic
or internal affairs That there are differences between them, and that these
differences are fundamental, may not be doubted - The Court indicated that
there are -inherent powers of external sovereignty- and in the field of
international relations the President is -the sole organ of the federal
government'
The Court then stated-
-It results that the investment of the federal government wiih the
powers of external sovereignty did not depend upon the affirmative
grants of the Constitution The powers to declare and wage war, to
conclude peace, to- make treaties, to maintain diplomatic relations
with other sovereignties, if they had never been mentioned in the
Constitution, would have vested in the federal government as neces-
sary concomitants of nationality As a member of the family of
nations, the right and power of the United States in that field are
equal to the right and power of the other members of the interna-
tional family Otherwise, the United States is not completely
sovereign"
The Court opinion continues
-It is important to bear in mind that we are here dealing not
alone with an authority vested in the President by an exertion of
legislative power, but with such an authority plus the very delicate,
plenary and exclusive power of the President as the sole organ of the
federal government in the field of international relations�a power
which does not require as a basis for its exercise an act of Congress,
but which, of course, like every other governmental power, must be
exercised in subordination to the applicable provisions of the Consti-
tution It is quite apparent that if, in the maintenance of our
international relations, embarrassment�perhaps serious embarrass-
ment�is to be avoided and success for our aims achieved, congres-
sional legislation which is to be made effective through negotiation
and inquiry within the international field must often accord to the
President a degree of discretion and freedom from statutory restric-
tion which would not be admissible were domestic affairs alone
involved Moreover, he, not Congress, has the better opportunity of
knowing the conditions which prevail in foreign countries, and,
especially is this true in time of war He has his confidential sources of
information He has his agents in the form of diplomatic, consular
and other officials Secrecy in respect of information gathered by
them may be highly necessary, and the premature disclosure of it
productive of harmful results
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National Security
The Court then concluded by stating that "the statute was not an unlawful
delegation and the discretion vested in the President was warranted
E. Chicago and Southern Air Lines, Inc. v. Waterman Steamship Corp. 333
U.S. 103, (1944
In this case, the issue was whether judicial review of orders of the Civil
Aeronautics Board as authorized by statute also included such orders granting
or denying a certificate of convenience and necessity for overseas and foreign
air transportation which are subject to approval by the President pursuant to
that statute The Court ruled in the negative, saying that such orders -are not
mature and are therefore not susceptible of ludicial review at any time before
they are finalized by Presidential approval After such approval has been
given, the final orders embody Presidential discretion as to political matters
beyond the competence of the courts to adjudicate 'S
The rationale of the Court follows
"The court below considered, and we think quite rightly, that it
could not review such provisions of the order as resulted from
Presidential direction The President, both as Commander-in-Chief
and as the Nation's organ for foreign affairs, has available intelli-
gence services whose reports are not and ought not to be published
to the world It would be intolerable that courts, without the
relevant information, should review and perhaps nullify actions of
the Executive taken on information properly held secret Nor can
courts sit in camera in order to be taken into executive confidences
But even if courts could require full disclosure, the very nature of
executive decisions as to foreign policy is political, not judicial Such
decisions are wholly confided by our Constitution to the political
departments of the government, Executive, and Legislative They
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 Judiciary 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
inquiry"
This long review of the history of conduct of intelligence efforts and
foreign affairs operations clearly establishes the fact of such activities as an
inherent responsibility of the President and the need for secrecy and the
embodiment of these principles in the Constitution with full awareness of the
import of the words used They were recognized as essential elements of
sovereignty and existence as a nation Then, our First Congress reaffirmed
these principles in enacting law to provide the contingent fund for the
President as the means to conduct intelligence and maintain secrecy We see
the clearly expressed distinction between the powers of the Executive in
respect of foreign affairs and those in respect of domestic affairs These
principles are fundamental and become a part of the concept
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II
FOURTH AMENDMENT � WARRANTLESS ELECTRONIC
SURVEILLANCE AND PHYSICAL SEARCH
Consideration of judicial treatment of -national security- factors when
faced with assertion of Fourth Amendment protection sheds some light and is
relevant to judicial views of First Amendment assertions in -national security"
cases Clear analogies can be drawn from judicial treatment of the national
security issue when faced with either Fourth or First Amendment assertions
Distinctions are made between domestic security issues and actions of foreign
powers, i e., foreign intelligence and counterintelligence. The distinction
between domestic and foreign will also show up in the travel/passport cases to
be discussed.
1,
The Fourth Amendment to the United States Constitution states
-The right of the people to be secure in their persons, hou,ses,
papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Wa'rrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized"
Recognition of the value of electronic surveillance in the national security
field coupled with concern for Fourth Amendment implications was found in
President Roosevelt's authorization of 3 September 1939 for the Federal
Bureau of Investigation to conduct wiretaps and physical trespass either to
install microphones or to conduct searches Succeeding Presidents approved or
reissued this authority up until passage of the Foreign Intelligence Surveillance
Act of 1978, 50 U.S C 1801, 25 October 1978
Various Court decisions raised doubts that continued reliance on Presiden-
tial authority to conduct electronic surveillance was sufficient in all types of
cases Also, there were continuing developments in case law surrounding
application of Section 605 of the Communications Act of 1934 (47 U S C 605)
to federal investigations of domestic criminal activities As a result, in 1968 the
Congress passed the Omnibus Crime Control and Safe Streets Act (18 U S.0
2510) containing provisions authorizing and requiring prior judicial authoriza:
tion of any electronic surveillance in connection with law enforcement
investigatidns That Act took particular note of the long used authority asserted
by the President and used by the FBI to conduct electronic surveillance for
-national security- purposes. Section 2511(3) provides as follows
-(3) Nothing contained in this chapter or in section 605 of the
Communications Act of 1934 (48 Stat 1143, 47 U S C 605) shall limit
the constitutional power of the President to take such measures as he
deems necessary to protect the Nation against actual or potential
attack or other hostile acts of a foreign power, to obtain foreign
intelligence information deemed essential to the security of the
United States, or to protect national security information against
foreign intelligence activities Nor shall anything contained in this
chapter be deemed to limit the constitutional power of the President
to take such measures as he deems necessary to protect the United
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States against the overthrow of the Government by force or other
unlawful means, or against any other clear and present danger to the
structure or existence of the Government The contents of any wire or
oral communication intercepted by authority of the President in the
exercise of the foregoing powers may be received in evidence in any
trial hearing, or other proceeding only where such interception was
reasonable, and shall not be otherwise used or disclosed except as is
necessary to implement that power" .
This subsection neither adds to nor subtracts from the President's power to
conduct electronic surveillance in the interest of national secunty No court
decisions have indicated otherwise (There il here, however, an expression of
Congress that explicitly includes foreign intelligence and counterintelligence
in the concept of national security.)
A. United States v. United States District Court, 407 U.S. 297, (1972) -
Keith.
In referring to Section 2511(3), the Court stated -. .. Congress simply left
presidential powers where it found them." In this case, the Attorney General
by affidavit stated he approved the wiretaps :`to gather intelligence informa-
tion deemed' necessary to protect the nation from attempts of domestic
organizations to attack and subvert the existing structure of Government " On
the basis of that affidavit, the Government asserted that "the surveillance was
lawful, though conducted without prior Judicial approval, as a reasonable
exercise of the President's power (exercised through the Attorney General) to
protect the national security" Since there was no evidence of any involve-
ment, directly or indirectly, of a foreign power, the Court concluded that any
special circumstances applicable to domestic security surveillances would not
warrant an exception to the general Fourth Amendment requirement that a
warrant be obtained The Court made it clear that the President's powers with
respect to surveillance of foreign powers were not at issue by saying
-Further, the instant case requires no judgment on the scope of
the President's surveillance power with respect to the activities of
foreign powers, within or without this country"
B. United States v. Brown, 484 F. 2d 418 (5th Cit. 1973), cert. denied, 415
U.S: 960, (1974). . �
This issue was, however, squarely addressed in Brown. The Court referred
to its earlier decision in United States v Clay, 430 F 2d 165 (5th Cir 1970) in
which it -concluded that the President had such authority over and above the
Warrant Clause of the Fourth Amendment We found that authority in the in-
herent power of the President with respect to conducting foreign affairs We
took our text from Chicago and Southern Air Lines v Waterman SS Corp , 333
U S 103, (1948)." The Brown opinion then utilizes quotations from Chicago
and Southern set forth in this paper. Continuing, the Brown opinion states _
that Keith teaches
..
. . in the area of domestic security, the President may not
authorize electronic surveillance without some form of prior judicial
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approval However, because of the President's constitutional duty to
act for the United States in the field of foreign relations, and his
inherent power to protect national security in the context of foreign
affairs, we reaffirm what we held in United States v Clay, supra, that
the President may constitutionally authorize warrantless wiretaps for
the purpose of gathering foreign intelligence. Accord, Zweibon v
Mitchell, D.D C 1973, 363 F Supp 936, United States v Butenko,
DNJ , 1970, 318 F Supp 66, restrictions upon the President's power
which are appropriate in cases of domestic security become artificial
in the context of the international sphere
-Our holding in Clay is buttressed by a thread which runs
through the Federalist papers that the President must take care to
safeguard the Nation from possible foreign encroachment, whether in
its existence as a Nation or in its intercourse with other nations" See
e g, The Federalist No 64, at 434-36 (Jay), The Federalist No 70 at,
500 (Hamilton) (J. Cook ed 1961)"
In a specially concurring 'opinion in the Brown case, Circuit Judge Goldberg
said
-There can be no quibble or quarrel with the findings and
conclusions that the wiretap under consideration here had its origin
and complete implementation in the field of foreign intelligence This
Court and the able district judge have conducted inescapably inde-
pendent reviews of the action of the then Attorney General in
authorizing this warrantless electronic surveillance All agree in the
determination that the wiretap was indeed directly related to legiti-
mate foreign intelligence gathering activities for national security
purposes, and that it was, therefore, a legal wiretap -
C. United States v. Butenko, 494 F. 2d 593 (3d Cir. 1974), cert. denied sub
nom., Ivanov v. United States, 419 U.S. SR, (1974).
Perhaps the most extensive judicial review of the law on warrantless
electronic surveillance for gathering of foreign intelligence is contained in
Butenko After trial and conviction of Butenko and Ivanov in 1964 of
conspiring to violate the provisions of 18 U.S C 794(a) and (c), there were
appeals and voluntary disclosure by the government that it had overheard
conversations of Ivanov by means of electronic surveillance
1 The Court faced head-on the question of whether Section 605 of the
Communications Act of 1934, 47 U.S C 605, was to be construed to restrict the
President's authority to gather foreign intelligence information and use such
information to assist in securing criminal convictions The Court pointed out
that in enacting Section 605, the Congress did not address the statute's possible
bearing on the President's constitutional duties as Commander-in-Chief and as
administrator of the Nation's foreign affairs Had the Congress explored the
question, the Court opines it would have recognized that any action by the
Congress that arguably would hamper the President's effective performance
of his duties in the foreign affairs field would have raised constitutional
questions In the absence of such legislative consideration, the Court would not
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ascribe to Congress an intent that Section 605 should reach electronic
surveillance conducted by the President in furtherance- of his foreign affairs
responsibilities, and therefore concluded that Section 605 does not render
them unlawful Thus, there are no limits placed on the uses to which material
so obtained may be put.
2 The Court then turned to an analysis of the applicability of the Fourth
Amendmerit to electronic surveillance conducted pursuant to the President's
foreign affairs powers The Court reviewed the expansive language of Curtiss-
Wright (cited and discussed earlier) but also discussed Keith (also cited and
discussed earlier) agreeing with its conclusion
that the Foutth Amendment is applicable even
though unlike Keith the subject of the surveil-
lance is not a domestic political organization
The Court stressed the strong public interest,
i.e., "the efficient operation of the Executive's
foreign policymaking apparatus depends on a continuous flow of Informa-
tion.- The Court then stated, "Also, foreign intelligence gathering is a
clandestine and highly unstructured activity"
The Court pointed out that while the "Constitution contains no express
provision authorizing the President to conduct surveillance, . . it would
appear that such power is similarly implied from his duty to conduct the
'Nation's foreign affairs" The Court went on to say, "To demand that such
officers .. must interrupt their activities and rush to the nearest magistrate to
seek a warrant would seriously fetter the Executive in the performance of his
foreign affairs duties" The Court then held in sum that prior judicial
authorization was not required since the surveillances were "conducted and
maintained solely for the purpose of gathering foreign intelligence.-
3 The Court then dealt with the matter of probable cause, stating, "the
crucial test of legality under the Fourth Amendment, is the probable cause
standard,- which is subject to post-search judicial review and such "review
represents an important safeguard of Fourth Amendment rights .. The
Court went on to say of the probable cause standard, that, "Although most
often formulated in terms of an officer's probable cause to believe that
criminal activity has or will take place, the standard may be modified when
the government interest compels an intrusion based on something other than
criminal activity. ." The Court then states
"The government interest here�to acquire the information
_necessary to exercise an informed judgment in foreign affairs�is
surely weighty. Moreover, officers conceivably undertake certain
electronic surveillance with no suspicion that a criminal activity may
be discovered Thus, a demand that they show that before engaging in
such surveillance they had a reasonable belief that criminal activity
would be unearthed would be to ignore the overriding object of the
intrusions Since the primary purpose of these searches is to secure
foreign intelligence information, a judge, when reviewing a particular
search must, above all, be assured that this was in fact its primary
purpose and that the accumulation 'of evidence of criminal activity
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National Security
was incidental If the Court, for example, finds that members of a
domestic political organization were the subjects of wiretaps or that
the agents were looking for evidence of criminal conduct unrelated to
the foreign affairs needs of a President, then he would undoubtedly
hold the surveillances to be illegal and take appropriate measures
-Since, interceptions of conversations of Ivanov were `solely
for the purpose of gathering foreign intelligence,' they are reasonable
under the Fourth Amendment Because we have already concluded
that a warrant was not required under the circumstances here, we,
therefore, hold that Ivanov's Fourth Amendment rights were not
violated
4 The Court concluded
-Rarely, if ever, do the phrases of the Constitution themselves
decide cases without at least some interpretative assistance from the
judiciary. The Constitution speaks through the Judges, but its phrases
are seldom so cabined as to exclude all flexibility Charged with the
assignment to make a choice, a judge must be responsible for the
choice he makes
-The importance of the President's responsibilities in the foreign
affairs field requires the judicial branch to act with the utmost care
when asked to place limitations on the President's powers in that area
As Commander-in-Chief, the President must guard the country from
foreign aggression, sabotage, and espionage Obligated to conduct this
nation's foreign affairs, he must be aware of the posture of foreign na-
tions toward the United States, the intelligence activities of foreign
countries aimed at uncovering American secrets, and the policy
positions of foreign states on a broad range of international issues
And balanced against this country's self-defense needs, we cannot say
that the district court erred in concluding that the electronic surveil-
lance here did not trench upon Ivanov's Fourth Amendment rights
-To be sure, in the course of such wiretapping conversations of
alien officials and agents, and perhaps of American citizens, will be
overheard and to that extent, their privacy infringed But the Fourth
Amendment proscribes only 'unreasonable' searches and seizures
-Accordingly, the judgment of the district court denying Ivanov's
request for disclosure and an evidentiary hearing will be affirmed
D. United States v. Truong Dinh Hung and United States v. Ronald Louis
Humphrey, 629 F. 2d 908, (4 Cir. 1980), cert. denied, 102 S. Ct. 1004.
The most recent chapter in the saga of the developing law of warrantless
electronic surveillance and searches arises out of the companion cases of
Truong and Humphrey who were convicted of espionage in violation of 18
U.S C 794(a) and (c) and other statutes They sought appeals on grounds which
included warrantless electronic surveillance and searches
1 Truong, a Vietnamese citizen, living in the United States, had his
telephone tapped and his apartment bugged by the federal government from
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National Security
May 1977 to January 1978 No court authorization was sought or obtained for
this telephone tap Through the tap, it was learned that Truong procured
copies of classified documents from Humphre, an employee of the United
States Information Agency At Truong's request, Dung Kra11 received packages
containing copies of the classified documents and delivered them to represen-
tatives of the Socialist Republic of Vietnam Unkno,A n to Truong, Kra11 was a
confidential informant employed by the CIA and the FBI Kra11 kept these
agencies fully informed and gave the packages to the FBI for inspection,
copying, and approval This operation continued from September 1976 until ,
31 January 1978 when Truong and Humphrey were arrested
2 The district court accepted the governtnent's argument that there exists
a foreign intelligence exception to the warrant requirement of the Fourth
Amendment and that approval for the surveillance by the President's delegate,
the Attorney General, was constitutionally sufficient The district court also
decided the executive could proceed without a warrant only so long as the in-
vestigation was -primarily" a foreign intelligence investigation Based on an
internal memorandum of 20 July 1977 indicating that the government had
begun to assemble a criminal prosecution, the district court decided that
thereafter the investigation was primarth criminal and excluded all evidence
secured through warrantless surveillance after that date
3 The appeals court agreed with the district court but pointed out that
the Supreme Court had never decided the issues However, they relied on the
analysis conducted in the United States v United States District Court (Keith),
407 U S 297 (1972) which is discussed earlier in this paper, where the
surveillance was against domestic organizations The appeals court here said
-For several reasons, the needs of the executive are so compelling
in the area of foreign intelligence, unlike the area of domestic
security, that a uniform warrant requirement would, following Keith,
'unduly frustrate' the President in carrying out his foreign affairs
responsibilities First of all, attempts to counter foreign threats to the
national security require the utmost stealth, speed, and secrecy A
warrant requirement would add a procedural hurdle that would
reduce the flexibility of executive foreign intelligence initiatives, in
some cases delay response to foreign intelligence threats, and increase
the chance of leaks regarding sensitive executive operations '
"More importantly, the executive possesses unparalleled expertise
to make the decision whether to conduct foreign intelligence surveil-
lance, whereas the judiciary is largely inexperienced in making the
delicate and complex decisions that lay behind foreign intelligence
surveillance The executive branch, containing the State Depart-
ment, the intelligence agencies, and the military, is constantly aware
of the nation's security needs and the magnitude of external threats
posed by a panoply of foreign nations and organizations On the other
hand, while the courts possess expertise in making the probable cause
determination involved in surveillance of suspected criminals, the
courts are unschooled in diplomacy and military affairs, a mastery of
which would be essential to passing upon an executive branch request
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National Security
that a foreign intelligence wiretap be authorized Few, if any, district
courts would be truly competent to judge the importance of particu-
lar inforniation to the security of the United States or the 'probable
cause' to demonstrate that the government in fact needs to recover
that information from one particular source
"Perhaps most crucially, the executive branch not only has
superior expertise in the area of foreign intelligence, it is also
constitutionally designated as the pre-eminent authority in foreign
affairs. The President and his deputies are charged by the
Constitution with the conduct of the foreign policy of the United
States in times of war and peace See ';Jnited States v Curtiss-Wright
Corp, 299 U S 304 (1936) Just as the separation of powers in Keith
forced the executive to recognize a judicial role when the President
conducts domestic security surveillance, 407 U S at 316-18, so the
separation of powers requires us to acknowledge the principal
responsibility of the President for foreign affairs and concomitantly
for foreign intelligence surveillance
"In sum, because of the need of the executive branch for
flexibility, its practical experience, and its constitutional competence,
the courts should not require the executive to secure a warrant each
time it conducts foreign intelligence surveillance. Accord, United
States v Butenko, 494 F. 2d 593 (3 Cir), cert denied sub nom,
Ivanov v United States, 419 US 881 (1974), United States v. Brown,
484 F. 2d 418 (5 Cir 1973), cert denied, 415 U S 960 (1974), United
States v Clay, 430 F. 2d (5 Cir 1970), rev'd. on other grounds, 403
U.S 698 (1971)"
4 Butenko, Brown and Clay dealt only with overhearing of the defen-
dants during the course of warrantless electronic surveillance for foreign
intelligence purposes which was not directed at them as targets In each case,
such surveillance was determined to be legal, and the result was that the
defendants were not entitled to review the results, which were not a part of
the evidence against them Here in Truong-Humphrey was the head-on
confrontation�the evidence obtained in warrantless electronic surveillance
directed at defendants, but conducted "primarily- for foreign intelligence
purposes, was admissible evidence in the prosecutor's case against them
5. The reasoning set out by Truong-Humphrey in support of the
lawfulness of such surveillance seems to be a strong argument against the
wisdom and constitutionality of the Foreign Intelligence Surveillance Act of
1978, 50 U.S C 1801 (FISA) and its requirement for a judicial warrant by the
Executive in order to conduct electronic surveillance for foreign intelligence
purposes in the United States
Certiorari was denied as to Butenko and Brown prior to passage of FISA
The reasoning of Truong-Humphrey accurately reflects Butenko and Brown
and agrees, with no other circuit courts substantially in disagreement That
part of FISA requiring a Judicial warrant before the Executive is permitted to
wiretap a known KGB agent, or for that matter the Soviet Embassy itself, flies
directly in the face of these three cases which represent the best judicial law
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National Security
on the subject Opponents of enactment of this part of FISA commented that
the title of the Act should be changed to reflect its intended purpose, i e, to
-An Act to Convey Fourth Amendment Rights on Foreign Embassies and all
Foreign Intelligence Agents in the United States" Only the media hysteria
and over-reaction of the mid-seventies could bring about such a result under
the clarion call of -protecting the Constitutional Rights of Citizens" .
E. Physical Search.
. On the issue of physical search, the United States Foreign Intelligence
Surveillance Court (FISC) established by FISA, by order of 4 June 1981,
determined it had -no statutory, implied, or inherent authority or jurisdiction
to review" an application for the FBI to undertake an intelligence physical
search of property under control of a foreign power However, previously on
at least two occasions judges of FISC have issued orders, at the request of the
Justice Department, authorizing searches of personal property, (H R Rep No
1466, 96th Congress, 2d Session 1980) The Department of Justice in its
Memorandum of Law, of 3 June 1981, accompanying its application, changed
direction from the Justice Department under the previous'administration and
urged that FISC reject its application -because of its lack of jurisdiction "That
memorandum went on to say, -The Department of Justice has long held the
view that the President and, by delegation, the Attorney General have
constitutional authority to approve warrantless physical searches directed
against foreign powers or their agents for intelligence purposes," and that this
power -has also been upheld by the only appellate court that has considered
this question in the context of a physical search of the property of an agent of
a foreign power" and cites the Truong-Humphrey case How, in legal logic,
can a physical search be distinguished from electronic surveillance in Fourth
Amendment terms? The answer is, it cannot
III
LEGISLATION AFFECTING NATIONAL SECURITY
Much effort is directed herein at the judicial view of -national security"
and the role of the Executive as interpreted by the court Attention should now
be turned to action by the Congress in legislating on various aspects of
-national security "Not all such legislation can be catalogued here, but we will
highlight action relating to those aspects of -national security" which touch on
intelligence or foreign activities and the need for secrecy We have discussed
previously the enactment since the first Congress of contingency funds for the
Executive to carry out secret intelligence and foreign affairs activities
A. National Security Act of 1947, 50 U.S.C.A. 402.
Until passage of this law, there was no utilization of the word -intelli-
gence" in the United States Code, other than a short reference to-detail of
Army officers to the fields of intelligence or counterintelligence, 10 USC A
2065(b) Congress addressed itself fully to the question of intelligence as an
integral part of -national security " It established a Central Intelligence
Agency with a head thereof, titled the Director of Central Intelligence, under
a new National Security Council presided over by the President
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Nat tonal Security
The CIA was given various duties for the purpose of coordinating the
intelligence activities of the Federal Government -in the interest of national
security - While the Congress, of necessity, decided to formalize "intelli-
gence- and -national securits ,- it could not bring itself to use the word
-espionage,- but this was a clearly intended duts of CIA as the classified
Congressional Committee hearings accurately reflect At P 127 of Book I of
the Final Report of the Senate Select Committee to Studs Governmental
Operations with Respect to Intelligence Activities, April 26, 1976 (Church
Committee), it is stated, "The Select Committee's record shows that the
legislating committees of the House and Senate intended for the Act (The
National Security Act of 1947) to authorize the Agency (CIA) to engage in
espionage"
The Director of Central Intelligence was furnished little authority by this
Act except for the ability to terminate employment of any CIA employee
whenever he deemed it "necessary or advisable in the interests of the United
States - This he could do notwithstanding the provisions of any other law. On
the other hand, a proviso was added that charged him with the responsibility
"for protecting intelligence sources and methods from unauthorized disclo-
sure.- This statutory charge was to play a large role in litigation to be discussed
later
B. Central Intelligence Agency Act of 1949, 50 U.S.C.A. 403a.
� In what was originally a part of the National Security Act in early drafts,
the CIA Act of 1949 provided the Agency with tools and authority to
accomplish its intelligence mission It was given needed procurement author-
ity, ability to pay appropriate travel, allowances, and related expenses of its
employees
1 To enable secret funding of its yearly appropriation, CIA was autho-
rized .to transfer to and receive from other government agency funds to
perform its functions, and as to funds transferred to CIA such expenditures
could be made under CIA authorities The principal such authority was
permanent contingent fund provisions such as previously discussed From that
time up through the present, CIA is the only government agency which
expends a major part of its funds under contingent fund provisions which
provide for a simple certificate of the Director as to the amount of such
expenditures without further detail
2 Another authority which was essential was the provision (50 USCA
403g) that
"In the interest of the security of the foreign intelligence
activities of the United States and in order further to implement the
[sources and methods proviso]' , the Agency shall be exempted
from the provisions of any other law which requires the
publication or disclosure of the organization, functions, names, offi-
cial titles, salaries, or numbers of personnel employed by the
Agency"
This provision was to become important in resisting requests for access under
the Freedom of Information Act, 5 U S C 552 (FOIA)
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C. Criminal Disclosure Statutes.
For purposes of this article, I shall not discuss the espionage statutes, 18
U S C 793 and 794 enacted in 1917, except to indicate they are woefully
inadequate to deal with cases of unauthorized disclosure or publication of
classified information In many respects, they are even inadequate to deal
with classic cases of espionage They have, however, withstood the challenge
of being unconstitutional as violative of due process because of indefiniteness
See Conn v United States, 312 U S 19, (1941)
I 50 U.S C.A 783(b), enacted in 1950, makes it unlawful for an
employee of the United States to disclose to a person whom such employee
knows or has reason to believe to be an agent of a foreign government
information of a kind which shall have been classified as affecting the
security of the United States Note here the statutory words "classified- and
"security" In Scarbeck v United States, 317 F 2d 546, (1963), cert denied,
83 S Ct 1897 (1963), the statute was tested and the defendant asserted that
evidence should be heard on whether the information was properly classified
and the burden was on the Government so to prove The Court rejected this
argument, stating
"The factual determination required for purposes of Section
. 783(b) is whether the information has been classified Neither the
employee nor the jury is permitted to ignore the classification given
under Presidential authority -
,
2 Section 798 of Title 18, also enacted in 1950, was intended to proscribe
unauthorized disclosure of classified information pertaining to communica-
tions intelligence or cryptographic systems These terms were then defined in
the law which made it a crime for anyone to disclose or communicate to an
unauthorized person, or to publish such information In a recent case, United
States v. Boyce, 594 F 2d (9 Cir 1979), the defendant who had been convicted
under Section 798 raised the same objection as in Scarbeck, i e, that the
documents were improperly classified The Court rejected this contention,
stating -Under section 798, the propriety of the classification is irrelevant
The fact of classification of a document or documents is' enough to satisfy the
classification element of the offense "
3 The Atomic Energy Act of 1954, 42 USCA 2011 establishes a
category of atomic energy information known as Restricted Data and defines
such information The Act makes it a crime for anyone to communicate or dis-
close Restricted Data (i) "with intent to injure the United States or with intent
to secure an advantage to any foreign nation" or (n) -with reason to believe
such data will be utilized to injure the United States or to secure an advantage
to any foreign nation", 42 U.S C A 2274 Further, the Act provides at 42
USCA 2280 authority for the government to seek an injunction for a
threatened violation of these criminal provisions The recent case of United
States v the Progressive, 467 F Supp 990, (7 Cir 1979) in which the
government was granted an injunction under this statute will be discussed later
in Part IV.
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D. National Security Agency Act of 1959, 50 U.S.C.A. 402 Note.
Despite the fact that the National Security Agency was not created by
statute, but rather 131 administrative action of the Secretary of Defense, the
Congress acted in 1959 to grant its activities additional protection from public
disclosure by the NSA Act of 1959 which provides
..
nothing in this Act or any other law shall be construed to
require the disclosure of the organization or any function of the
National Security Agency, of any information with respect to the
activities thereof, or of the names, titles, salaries, or number of the
persons employed by such Agency" ,
(This closely parallels the CIA provision referred to earlier, 50 U.S C.A 403g)
This provision would be helpful to NSA in later litigation under FOIA
E. Intelligence Identities Protection Act of 1982, P.L. 97-200.
The continuing development of -national security- law is reflected in
most recent legislative action, i e., the Congress approving in 1982 the
-Intelligence Identities Protection- legislation Similar proposed legislation
had been introduced as early as 1975, and committees of three different
Congresses have considered this issue The purpose of these bills was to
prohibit unauthorized disclosure of information identifying United States
6ersonnel, including agents, informants, and sources
and to protect the secrecy of these intelligence rela-
tionships That section of the bills relating to disclo-
sures by persons not having had access to classified
information was the subject of intense debate over four
years
Many assertions were made by special interest
groups and others that this latter section was flatly and
facially unconstitutional, but support for this assertion
by directly relevant case law was conspiciously absent
Among those who urged this view were included those
who also assert the First Amendment is an absolute Some of these interest
groups made similar assertions in Zemel v. Rusk, Cole v. Richardson, Laird v
Tatum,, Marchetti I and II, Snepp, Truong-Humphrey, Haig v Agee, (all
cited and discussed herein) and had their assertions rejected by the Supreme
Court, which balanced -national security- against constitutional rights Hav-
ing lost their First Amendment arguments at the bar of the Supreme Court,
they attempted to win that argument in Congressional committee rooms, but
finally lost that battle on the floor of the House and the Senate
The Intelligence and Judiciary Committees of both Houses, over more
than a 'three-year period, carefully crafted well designed provisions to meet
the objective of improving the effectiveness of U S intelligence, and protect-
ing the safety of intelligence personnel At the same time, the provisions were
deemed adequate and sufficient to pass Constitutional muster In a last minute
effort to weaken the effectiveness of the proposed bills, those interests which
had objected to such legislation on constitutional grounds were instrumental in
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)
having amendments made to H R. 4 and S 391 as they were reported out by
the committees In rousing and prolonged debate, particularly in the Senate,
the amendments added by the committees were rejected in roll-call votes, and
the provisions of S 391 as introduced by Senator Chafee and supported by the
Administration were approved and signed into law on 23 June 1982 by
President Reagan before assembled officers and employees of CIA at the
Headquarters Building at Langley, Virginia �
The interest groups opposed to any measures to improve the effectiveness
of intelligence won temporary victories in the Congressional committee arena
Such groups include within their ranks expogents of the absolutist view of the
First Amendment But it is interesting and significant that those forces lost on
the floor of the House and the Senate on roll-call votes Those votes for the
bills as amended on the floor were, in the House 354 to 56 and in the Senate 90
to 6 Thus, resounding majorities in both Houses voted their belief that this law
is constitutional in the framework of protecting "national security" despite the
shrill protests of the media and First Amendment absolutists
IV
FIRST AMENDMENT NATIONAL SECURITY CASES
We now begin to come face to face with judicial expressions of resolution
of the apparent dilemma of the protective words of the First Amendment and
the necessities of the survival of the nation through the exercise of Presidential
powers under Article II of the Constitution
A. Near v. Minnesota, 283 U.S. 697, (1931).
Most treatises on the First Amendment include Near v. Minnesota, and so
shall I While that case dealt with a state law proscribing publication of
defamatory newspapers (which was struck down on First Amendment
grounds), the Court took great care to make it clear that the First Amendment
was not absolute The example they chose to illustrate an exception lay in the
"national security" area, i e, military matters
�
. . the protection even as to previous restraint is not absolutely
unlimited "and
"No one would question but that a government might prevent
actual obstruction to its recruiting efforts or the publication of the
sailing dates of transports or the number and location of troops"
B. Kent v. Dulles, 357 U.S. 116, (1958).
Many point to Kent v Dulles as judicial vindication of an asserted First
Amendment right to travel This it is not Factually, the issue concerned
refusal of the Secretary of State to issue a passport based on the applicant's
failure to file affidavits concerning membership in the Communist Party as re-
quired by law The Court held for the applicant, concluding that the statutes
' See The President at Langley,- Studies in Intelligence, Fall 1982, Volume 26,
Number 3
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did not give the Secretary of State the kind of authoritx exercised to deny
travel "solely because of their refusal to be subjected to inquiry into their
beliefs and associations " The Court stated it did not reach the question of the
constitutionality of the statutes concerned It did state
"The right to travel is part of the libem ' of which ,the citizen
cannot be deprived without due process of law under the Fifth
Amendment"
The Court then added
"If we were dealing with political questions entrusted to the
Chief Executive by the Constitution we Ikould have a different case"
In other. words, if appropriate "national security- considerations were in-
volved, such as the President's responsibilities for foreign affairs, the result
might be different�and so it was as we shall see in the next case and in the
later case of Haig v Agee
C. Zemel v. Rusk, 381 U.S. 1, (1965).
First Amendment rights were again asserted in a passport case where the
Secretary of State refused to validate a passport for travel to Cuba in Zemel v
Rusk The Court stated
..
.. we cannot accept the contention of appellant that it is a First
Amendment right which is involved For to the extent that the
Secretary's refusal to validate passports for Cuba acts as an inhibition
(and it would be unreasonable to assume that it does not), it is an inhi-
bition of action . . The right to speak and publish does not carry
with it the unrestrained right to gather information -
The Court, picking up on the "right to travel- as a liberty of a citizen referred
to in Kent v Dulles, discussed above, went on to say, "the fact that a citizen
cannot be inhibited without due process of law does not mean that it can un-
der no circumstances be inhibited - The Court in referring to the restriction
on travel to Cuba then said, "the restriction is supported by the weightiest con-
siderations of national security"
D. New York Times Co. v. United States, 403 U.S. 713, (1971).
Due to the haste with which this "Pentagon Papers- case was brought to
the Supreme Court, there were many complaints in the opinions about such
haste It is difficult to draw clear lessons, abetted by the fact of six separate
concurring opinions, all but two shared by more than one Justice and three
separate dissenting opinions (two of them individual dissents) There were
disparate views ranging from the absolute views of the First Amendment of a
minority to the view of some Justices that they were "not prepared to reach
the merits, - The final result, of course, was that injunctions againt the
New York Times and the Washington Post were not sustained
One can draw a lesson that the Government did not carry its burden of
proving grave, immediate, and irreparable harm to the national security of the
United States Others would assert that this case stands for the principle that
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there can be no prior restraint of the media Hom ever, as Justice White put it,
with concurrence of Justice Stewart, "I do not say that in no circumstances
would the First Amendment permit an injunction against publishing informa-
tion about government plans and operations" He also noted that in this case, "a
substantial part of the threatened damage has already occurred" Justice
Marshall, in concurring with the result, conceded that "in some situations it may
be that under whatever inherent powers the Government may have as well as
the implicit authority denved from the President's mandate to conduct foreign
affairs and to act as Commander in Chief, there is a basis for the invocation of
the equity Jurisdiction of this Court as an aid to prevent the publication of mate-
rial damaging to 'national security' however that term may be defined"
E. Cole v. Richardson, 405 U.S. 676, (1972).
In Cole v. Richardson, First Amendment rights were .again asserted In
this case, an employee of the State of Massachusetts refused to subscribe to a
required oath of employment which provided in part that the subscriber will
oppose the overthrow of the Government of the United States by force,
violence, illegal, or unconstitutional method Other parts of the oath of office
provided for upholding the Constitution of the United States The Court held
that such an oath was not inconsistent with the constitutionally required oath
of office "to uphold the Constitution"
F. Laird v. Tatum, 408 U.S. 1, (1972).
Just a few months later, the U S Supreme Court dealt with assertions of
First Amendment rights in a case more directly related to "national security,-
4 e , collection of intelligence by the U S Army in Laird v Tatum.
Here the Army had established a system for collecting intelligence,
principally through monitoring the media, concerning civilians possibly
4nvo1ved in potential or actual civil disturbances No legally proscribed
collection means were utilized The Court reviewed the various statutes which
authorized the President to utilize the armed forces to quell insurrection The
plaintiffs asserted that the chilling effects of the mere existence of this
collection activity on their First Amendment rights were constitutionally
impermissible The Court held
"No logical argument can be made for compelling the military to
use blind force When force is employed it should be intelligently
directed, and this depends upon having reliable information�in
time As Chief Justice John Marshall said of Washington, 'A general
must be governed by his intelligence and must regulate his measures
by his information It is his duty to obtain corrrect information
Here again, the Court refused to spread the umbrella of First Amendment
rights to exclude -national security- needs for intelligence
G. United States v. Marchetti, 466 F. 2d 1309 (4 Cir. 1972), cert. denied,
409 U.S. 1063 (1972), hereinafter Marchetti I.
The competing demands of "national security- need for secrecy in
intelligence matters, First Amendment rights, free speech, and prior restraint
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were thoroughly analyzed and dealt with in United States v Marchetti � The
Central Intelligence Agency sought an injunction requiring its former em-
ployee, Marchetti, to submit to the Agency any proposed writing relating to
the CIA prior to release to anyone else, the purpose being to assure that such
writing did not include any classified information CIA relied upon a secrecy
agreement signed by Marchetti when he became a CIA employee wherein he
agreed he would never divulge any classified information unless authorized by
the Director of Central Intelligence. It was claimed that the First Amendment
barred any such prior restraint and the New York Times case was cited in sup-
port of this claim
The Court in its opinion pointed out that 'free speech is not an absolute
concept and referred to the type of exception for "national security" set out in
Near v. Minnesota The Court then commented on the government's right to
secrecy in foreign affairs matters and intelligence, citing Curtiss-Wright
Export and Chicago and
Southern Air Lines The Court
� 13ointed out that the Director
of Central Intelligence is
charged by law with the re-
sponsibility "for protecting in-
telligence sources and methods
from unauthorized disclosure "
50 U S 403(dX3) The Court
stated such secrecy agreements
as signed by Marchetti "are
entirely appropriate" to imple-
ment the Congressional charge
of responsibility The Court
upheld the injunction, saying, "Marchetti by accepting employment with the
CIA and by signing a secrecy agreement did not surrender his First
Amendment right of free speech The agreement is enforceable only because it
is not a violation of those rights."
Thus, a valuable legal tool had been established, enforceable in a court,
based on a simple contract concept This tool could prevent serious damage to
the "national security" interests of the United States or threats to the personal
safety of individuals, by acting in advance of a threatened disclosure�with no
abridgement of First Amendment rights
H. Environmental Protection Agency et al v. Mink et al, 410 U.S. 73, (1973).
EPA v. Mink is discussed briefly here because.of the reaction of Congress
The Freedom of Information Act, 5 U S C 552 (FOIA) provided for exemp-
tion from forced disclosure matters "specifically required by an Executive
Order to be kept secret in the interest of national defense or foreign policy"
After discussing the legislative history of that act, the Court held " but the
legislative history of that Act disposes of any possible argument that Congress
' See The Nbrcheui Cdse New case L.p.v,- 1)1 John s Warner, Studies in Intelligence
Spring 1977, Volume 21, Number 1
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intended the Freedom of 'Information Act to subject executive security
classifications to judicial review at the insistence of anyone who might seek to
question them "
The Congress promptly amended the existing FOIA concerning the
exemption relating to matters to be kept secret pursuant to an Executive Order
to provide additionally, "and (B) are in fact properly classified pursuant to
such Executive Order,", Public Law 93-502, 21 November 1974 That law also
provided that any documents withheld under any of the exemptions may be
examined by the court in camera and such "court shall determine the matter
de novo "
The President's veto message of 17 OdIober 1974 stated, ". the courts
should not be forced to make what amounts to the initial classification decision
in sensitive and complex areas where they have no particular expertise" He
stated this provision "would violate constitutional principles. And, "It
is my conviction that the bill as enrolled is unconstitutional and unwork-
able "There are many who agreed then and agree now on the basis of the
spectacle that has been visited upon our judicial system by this revision
Consider the case of Philip Agee v Central Intelligence Agency decided
in the District Court for the District of.Columbia on 17 July 1981, Agee v
CIA, 524 F Supp. 1290. The Court conducted a random in camera review of
the 8,699 CIA documents responsive to the Agee request This review was
'done mainly at CIA Headquarters "because of the volume and sensitivity of
the material" In granting the CIA's motion for summary judgment of
dismissal, Judge Gerhard A Gesell said
"As far as can be determined this is the first FOIA case where an
individual under well-founded suspicion of conduct detrimental to
the security of the United States has invoked FOIA to ascertain the
direction and effectiveness of his Government's legitimate efforts to
ascertain and counteract his effort to subvert the country's foreign
intelligence program It is amazing that a rational society tolerates the
expense, the waste of resources, the potential injury to its own security
which this process necessarily entails"
In a footnote, Judge Gesell notes that as of January 1981 CIA had expended
25,000 manhours on the request involving salaries of $327,715 and computer
costs of $74,750 with present total costs far exceeding such sum, none of which
can be charged to Agee under the statute.
Here again, the hysteria and media over-reaction of the mid-seventies led
to passage of a law vetoed as being unconstitutional and flying into the face of
well-established case law that the determination of what is secret and must be
protected in the interest of "national security" is a matter to be left to the
Executive Branch
In testimony before the Senate Select Committee on Intelligence on 21
July 1981, the Deputy Director of Central Intelligence, Admiral B R Inman,
pointed out that prior to the 1974 amendments, CIA had received virtually no
FOIA requests and since then has been deluged with such requests and with
resulting litigation with 1,212 new FOIA requests logged in 1980 Admiral
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Inman concluded, -I believe it is absolutely clear that the FOIA is impairing
our nation's intelligence efforts" Many of the same interests asserting First
Amendment privilege in the passport cases, Marchetti I and II, Snepp, and in
the vanguard of resisting passage of the Intelligence Identities Protection Act
of 1982 are also leaders in the multiplicity of FOIA lawsuits filed against all of
the national security agencies
I. Knopf v. Colby, 509 F 2d 1362 (4 Cir. 1975), cert. denied, 421 U.S. 992
(1975), to be known as Marchetti II.
We now come to Marchetti II where the author is requesting judicial
review of deletions of classified information requested by CIA upon its review
of the manuscript submitted pursuant to the injunction granted in Marchetti I
The Court noted that in its consideration of the earlier case it had been
-influenced in substantial part by the principle that executive decisions
respecting the classifying of information are not subject to Judicial review,:'
and then cited EPA v Mink. It also noted the revisions to FOIA of 1974, indi-
cating the new standard of review should be applicable. Even under this
standard after review of some of the deleted items, the Court referred to the
-presumption of regularity in the performance by a public official of his
public duty" And, -That presumption leaves no room for speculation that
information which the district court can recognize as proper for top secret
classification was not classified at all by the official who placed the 'Top
Secret' legend on the document" The effect of the Court's ruling was to
approve all of the deletions of classified information requested by CIA.
The Court also declined to modify its previous holding (in Marchetti I)
that the First Amendment is no bar against an injunction forbidding disclosure
of classified information when such disclosure would violate a solemn
agreement made by the employee at the commencement of his employment.
The Court concluded
-With respect to such information, by his execution of the
security agreement and his entry into the confidential employment
relationship, he effectively relinquished his First Amendment rights"
J. United States v. The Progressive, 467 F. Supp. 990 and 486 F. Supp. 5,
(1979).
Here in The Progressive case a temporary restraining order, and later a
preliminary injunction, was granted by a Federal District Court to prevent
publication by a magazine of an article purported to contain the basic theory
of why the hydrogen bomb works and how it is constructed The Court
balanced the statements of the Secretary of Defense and the Secretary of State
that publication would irreparably harm the national security of the United
States against First Amendment assertions In granting the injunction, the
Court stated
"A mistake in ruling against the United States could pave the way
for thermonuclear annihilation for us all In that event, our right to
publish is moot" And - . ' one cannot enjoy freedom of speech,
freedom to worship or freedom of the press unless one first enjoys the
freedom to live"
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The Court denied reconsideration, and we can only surmise what
appellate rulings would have been in the Circuit Court and the Supreme
Court, since substantially the same information was published by another
author in another publication, and the case became moot However, the
Court's opinion is worthy of noting in its attempt to balance "national
security" and survival against First Amendment considerations
K. Snepp v. United States, 444 U.S. 507, (1980).
The enforceability of a secrecy agreement was again raised in Snepp v.
United States Plaintiff makes the assertion that such agreement is unenforce-
able as a prior restraint on protected speed) and thus violative of the First
Amendment. Snepp was employed by CIA and signed a secrecy agreement
similar to that in the two Marchetti cases After terminating his employment
with CIA, Snepp published a book based on his experiences in CIA about
certain CIA activities without submitting it to CIA for review for classified
information The government sought an injunction as in Marchetti I but
additionally requested that all profits attributable to the breach of contract by
failure to submit his manuscript be impressed with a constructive trust. The
Court found that Snepp's employment with CIA involved an extremely high
degree of trust and that he "deliberately and surreptitiously violated his
obligation. . ." The Court found undisputed evidence that a CIA agent's
violation of his obligation to submit writings impairs the CIA's ability to
Perform its statutory duties. The Court referred to the finding of the District
Court that publication of the book had "caused the United States irreparable
harm and loss" The Court found it immaterial whether the book actually
contains classified information�for the purposes of this case, the CIA did not
contend in the case that Snepp's book contained classified material However,
upon being questioned on this point at a hearing before the House Permanent
Select Committee on Intelligence on 6 March 1980, a CIA witness made it
very clear that the Snepp book did in fact contain a number of matters that
were classified.
The Court approved the injunction as to all future writings relating to
intelligence matters, thus putting its stamp of approval on the Marchetti cases
It also approved the constructive trust as an appropriate remedy for both the
Government and the former agent The Court said
"If the agent publishes unreviewed material in violation of his
fiduciary and contractual obligations, the trust remedy simply re-
quires him to disgorge the benefits of his faithlessness Since the
remedy is swift and sure, it is tailored to deter those who would put
sensitive information at risk."
To deny this remedy "would deprive the Government of this equitable and
effective means of protecting intelligence that may contribute to national
security "The majority opinion in a footnote rejects a dissent which analogizes
Snepp's obligation to a private employee's covenant not to compete by saying
-A body of private law intended to preserve competition,
however, simply has no bearing on a contract made by the Director of
the CIA in conformity with his statutory obligation to 'protect
intelligence sources and methods from unauthorized disclosure.'"
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L. Haig v. Agee, 453 U.S. 280, (1981).
First Amendment rights are again asserted in connection with the
revocation of Philip Agee's passport by the Secretary of State pursuant to
departmental regulations in Haig v Agee The notice to Agee of revocation of
his passport stated, his "activities abroad are causing
or are likely to cause serious damage to the national
security or the foreign policy of the United States
It was stated such action was based on Agee's stated
intention to conduct a continuous campaign to
disrupt the intelligence operations of the United
States and evidence of facts and actions in carrying '
out that campaign The Court stated that beliefs and
speech are only a part of Agee's campaign, contrast-
ing it with Kent v Dulles The Court also stated,
"for Agee's conduct in foreign countries presents a
serious danger to American officials abroad and
serious danger to the national security.-
' The Court stated that the freedom to travel abroad in the form of a
passport "is subordinate to national security and foreign policy consider-
ations." Further, it pointed out -that the freedom to travel outside the United
States must be distinguished from the right to travel within the United States"
The former, 1 e., the freedom to travel outside, can be regulated within the
bounds of due process. The Court went on to say, -It is obvious and
unarguable that no governmental interest is more compelling than the security
of the Nation" and, -Protection of the foreign policy of the United States is a
governmental interest of great importance, since foreign policy and national
security considerations cannot be neatly compartmentalized"
The Court cites in this portion cases already cited herein, Chicago and
Southern, Curtiss-Wright Export, Zemel v. Rusk, Snepp, and then jumps back
to Near v Minnesota The Court in finding that Agee's First Amendment
claim. has no foundation stated
-Agee's disclosures, among other things, have the declared
purpose of obstructing intelligence operations and the recruiting of
personnel They are clearly not protected by the Constitution The
mere fact that Agee is also engaged in criticism of the Government
does not render his conduct beyond the reach of the law To the
extent the revocation of his passport operates to inhibit Agee, 'it is an
inhibition of action,' rather than of speech"
CONCLUSION
While the term -national security" is of relatively modern origin,
nevertheless its substance is fully embedded in our law beginning with the
Constitution Article II provides for a President who shall be Commander in
Chief of the Army and the Navy and states that he shall have power to make
treaties with other nations These powers and responsibilities were granted as
concomitant with other aspects of sovereignty in a world of contesting and
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often hostile nations The duty was clearly and explicitly placed on the
President to preserve and protect this nation by foreign activities and by force
of arms if necessary, i.e, to protect the "national security -
In the very molding of the Constitution, it has been demonstrated that the
Framers were mindful of the necessity for the conduct of intelligence
activities and equally mindful of the necessity for secrecy of those activities
The history set forth above relating to the amendment of the Statements and
Accounts clause of Article I dramatically emphasizes that secret intelligence as
an element of national security is an integral part of our Constitution
Whenever other provisions of the Constitution are asserted as conveying
privileges or rights, such assertions must be considered against the Constitution
as a whole. Where Presidential duties involving national defense, foreign
activities, and intelligence are present in situations where First Amendment
(or Fourth Amendment) nghts are asserted, it is the role of the Judiciary to
balance what may seem to be conflicting Constitutional principles
From Totten on, the Supreme Court has trod most carefully where these
national security issues are involved It has shown great respect for the powers
and responsibilities vested in the President by the Constitution and by the
fundamental concepts of sovereignty which enable a nation to exist and
preserve its national security. In theiandmark cases, Curtiss-Wright Export
and Chicago and Southern, it laid the judicial groundwork for the later First
Amendment, electronic surveillance and passport cases Here were made the
distinctions between foreign affairs and internal affairs Also discussed was the
relationship between intelligence concerning foreign matters and the exercise
of Presidential powers.
Similar distinctions were made by the Judiciary in electronic surveillance
cases In various Circuit Courts of Appeal (Keith, Brown and Butenko), it was
determined that inherent Presidential power to authorize wiretaps and
bugging in the interests of national security could not overcome the restraints
of the Fourth Amendment in purely domestic security matters As to
collection of foreign intelligence and counterintelligence from agents of
foreign powers, the courts uniformly held that Presidential powers were
paramount. In considering whether the general statute prohibiting disclosure
of wire communications (Communications Act of 1934) was applicable,
Butenko held that it could not ascribe to Congress an intent to intrude on such
activities conducted by the President in his constitutional role as Commander-
in-Chief and as administrator of the Nation's foreign affairs These courts
drew reinforcement in reaching their judgments from Curtiss-Wright Export
and Chicago and Southern, as did the Court in the 1980 decision in the
Truong-Humphrey case which reaffirmed Keith, Brown and Butenko.
Congress clearly approved the concept of secret intelligence and related
foreign activities by authorizing in the First Congress a secret contingency
fund for the President for these purposes and thereafter providing similar
funds throughout our existence as a nation Intelligence was formally recog-
nized by Congress in establishing the Central Intelligence Agency in 1947 and
giving it necessary authority to conduct intelligence and related activities and
also the necessary authority to keep such matters secret Some of these
authorities to keep matters secret were granted to the National Security
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Agency in 1959 Criminal statutes were enacted with respect to disclosure of
communications intelligence (18 U S C 798), classified information by govern-
ment employees (50 USCA 783(b)) and Restricted Data relating to atomic
energy (42 USCA 2274) Most recently, the Congress in 1982 (P L 97-200)
made it a criminal offense to disclose the identity of intelligence personnel
under cover By an overwhelming majority in roll-call votes in both Houses,
the argument was rejected that this legislation was violative of the First
Amendment
It is against this total background that "national security" and the First
Amendment must be considered Certainly Near v. Minnesota is the precursor
of the cases to come In the passport cases, Kenev Dulles, Zemel v. Rusk, and
finally in Haig v Agee where First Amendment rights were asserted, the
Supreme Court balanced those rights against "national security " These same
cases are relied on in the Marchetti I and II and Snepp cases
The array of decisions discussed must lead to a heightened awareness that
secret foreign policy activities, intelligence, strategic military plans and
operations were all of a part of the powers vested in the President by the
Framers of the Constitution The Congress, from its inception, implemented
those powers with necessary funds and the laws to maintain essential secrecy
The Judiciary has consistently paid due deference to these powers vested in
the Executive, recognizing the weighty responsibility placed on the Executive
on which the existence of our nation depends Sharp distinctions have been
drawn between purely domestic security and law enforcement as against
foreign policy activities, including intelligence operations The Supreme Court
has weighed and balanced most carefully the seeming dilemma of the
privileges afforded citizens by the Constitution and the exercise by the
Executive of its constitutional responsibilities for "national security
For those who wish to explore seriously the subject of "Law and National
Security," there is a wealth of judicial expression of philosophy on the subject
But, the subject cannot be thoroughly examined by sole reference to law unless
that law has been considered in the context of "national security " As aptly
said in Kennedy v. Mendoza-Martinez, 372 U.S 144, (1963) and quoted in
Haig v. Agee
"While the Constitution protects against invasion of individual
rights, it is not a suicide pact "
First Amendment absolutists should constantly be reminded with this quota-
tion that the Judiciary performs the function of weighing the apparently
competing demands of First Amendment rights and "national security"
imperatives, as demonstrated by the cases dealt with herein
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8. "Intelligence Gathering and the Law," Benjamin R. Civiletti
(Summer 1983, Volume 27/2)
Conflict or compatibility2
INTELLIGENCE GATHERING AND THE LAW �
Benjamin R. Civiletti
This article focuses on the evolving relationship between the rule of law
and the intelligence-gathering activities of our government. The collection and
utilization of intelligence information are essential ingredients of foreign
policy and national security, and the dramatic increase in international
tensions emphasizes our country's crucial need 'for timely and accurate foreign
intelligence. Nevertheless, past excesses in the conduct of intelligence activities
indicate that such operations cannot be implemented without careful regard
for the rule of law.' The following analysis considers the complexities of
developing a rule of law that comports with the genuine need of our
government to engage in foreign intelligence activities and preserves the civil
liberties and privacy interests of our citizens.'
I. THE NATURE AND ROLE OF INTELLIGENCE GATHERING
In the past, the line between foreign and domestic intelligence gathering
often�was not clearly drawn.' The Executive Branch, however, is now careful
to distinguish these two concerns. Thus, intelligence is defined to include only
foreign intelligence and counterintelligence,' both of which, in turn, are
defined as information relating to -foreign powers, organizations or per-
sons." ' Recent bureaucratic reorganizations and the promulgation of rules,
regulations, and guidelines have also reflected this sharp domestic/foreign
distinction.' In the Federal Bureau of Investigation (FBI), for example,
criminal and intelligence investigations are handled by two separate divisions 7
Similarly, the President's Executive Order on Intelligence Activities specifi-
cally provides that it does not "apply to or interfere with any authorized civil
or criminal law enforcement responsibility of any department or agency."'
This distinction between foreign intelligence and domestic law enforce-
ment reflects not only the attitude of the courts 9 and the legislature, I� but also
the present belief of the Executive Branch that the purposes of intelligence
gathering are fundamentally different from those of domestic law enforce-
ment and, therefore, require different regulations. Law enforcement is
� This article is adapted from the Tenth Annual John F Sonnett Memorial Lecture,
delivered by Mr Civiletti, then Attorney General of the United States, at the Fordham
University School of Law on 15 January 1980 Several attorneys in the Department of Justice,
particularly Kenneth B Reisenfeld of the Office of Intelligence Policy and Review, assisted Mr
Civiletti in preparing this paper The article was published in the Fordham University Law Re-
view, Volume 48, Number 6, May 1980, and is presented here by permission of Mr Civiletti
and the editors of the Law Review In the years since Mr Civiletti prepared the article, the sta-
tus of some of the issues he addressed has changed A commentary taking note of these
developments is appended to this article
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intended to discover and punish. acts which society deems unacceptable
Intelligence activities are intended to acquire information so that the President
and his advisOrs can make informed decisions in conducting international
diplomacy, foreign relations, and national security affairs " In counterintelli-
gence, however, there are some areas in which intelligence and domestic law
enforcement interests overlap This intersection is particularly apparent when
the government attempts to monitor clandestine information gathering by
foreign agents in the United States because many forms of foreign espionage
conducted within our nation's borders are crimes under federal law '2 The
need to observe the activities of agents of foreign powers and to defend against
their operations demands considerable caution "
Intelligence activities, which, as presently defined, pertain only to foreign
affairs and national security issues," must be kept strong and effective The
government needs to obtain the best information available concerning 'the
intentions and activities of foreign powers The ability of the United States to
react to events in foreign lands is limited under any circumstances. Without
timely and accurate information, the ability to react constructively is elimi-
nated. Moreover, obtaining critical intelligence is exceedingly difficult
Although it may be virtually impossible, given today's technology, for any
country to conceal substantial troop movements, the transfer of funds and
arms and the strategies of foreign governments are not as readily detectable
Unless we possess current, accurate knowledge about the actions a foreign
power is likely to take, our information base is limited, and the more limited
our information base, the more speculative are our analyses, and the greater
the danger to our security. Secrecy, however, is an essential element of
effective intelligence gathering Even if we are able to gain information
concerning a hostile foreign nation, our success will be shortlived if we disclose
the facts of our success Further, if we reveal the information obtained, we will
not 'only lose our advantage and risk changes in the acquired plans, but we will
also jeopardize or perhaps destroy our sources and methods of gathering
information 15
What makes these seemingly 'self-evident observations controversial is that
intelligence activities can come perilously close to intruding upon our most
basic statutory and constitutional rights 16 This inherent danger is increased by
the highly sophisticated technological advances, commonly used throughout
the world today, that widen the range of possible intelligence-gathering
activities. The necessity of secrecy, however, often prohibits any judicial
review of questionable intelligence activities.'' The Executive Branch, there-
fore, is required to redouble its efforts to ensure that intelligence activities are
not exempted from all responsible checks and balances 16 The need to create
durable mechanisms to regulate and review intelligence activities has led to
the evolution of intelligence law
II. THE DEVELOPMENT OF INTELLIGENCE LAW
Although both law enforcement and intelligence activities have existed in
this country since before the creation of the Republic," they have developed
largely along separate tracks because of their conflicting natures Law
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enforcement emphasizes openness, stability, and a balancing of interests, its
concerns are domestic and its scope is comprehensive Intelligence activities
require secrecy, flexibility, and a single-mindedness of purpose, they focus on
foreign developments and rapid adaptability to specific circumstances Given
these disparities, it is no surprise that law enforcement and intelligence
activities did not converge in the United States until recently
e
The first permanent peacetime intelligence organizations in the United
States were created in the latter part of the nineteenth century 20 These were
relatively ineffective, however, and during World War 1 the nation relied to a
great extent on the intelligence capabilities of its allies 2 It was not until World
War II that American intelligence efforts began to flourish under the Office of
Strategic Services " Apart from various directives dealing essentially with
organizational matters, there was almost no accompanying development of
law relating to intelligence activities.23
After World War II, a permanent Central Intelligence Agency (CIA) was
created by the National Security Act of 1947 " This statute was the first public
declaration by any nation concerning the existence and functions of its
intelligence service The Act is remarkably concise; in five short subparagraphs
it instructs the CIA to collect intelligence information and to perform other
related functions at the direction of the National Security Council." The Act's
sole express restriction is the proviso that the CIA should not have any police,
subpoena, or law enforcement powers or internal security functions " This
limitation was as much a concession to established law enforcement agencies
as it was an effort to prevent the creation of an American secret police 27
With the exception of espionage statutes enacted originally in 1917 and
subsequently amended," and administrative housekeeping laws enacted to
facilitate the operation of the CIA and the National Security Agency, there
were no other laws expressly relating to United States intelligence activities
from 1947 until the 1970s 29 In fact, during this period laws were passed that,
if taken literally, would have obstructed or prevented clearly legitimate and
necessary intelligence programs 3� Faced with an absence of particularized law
or precedent and an array of general purpose laws inappropriate to intelli-
gence endeavors, the government and its intelligence agencies understandably
ignored the broad range of legal strictures that apply in other areas of
governmental activity The deference shown to intelligence matters for almost
thirty years by the public, press, Judiciary, Congress, executive officials,
various Presidents and Attorneys General considerably strengthened the
assumption that intelligence efforts were so different or special that modified
legal standards should be applied to them 31 Over the past few years, however,
this perception has changed, and express legal principles have been specific-
ally developed to govern intelligence activities Although there may continue
to be some confusion about how the law applies to a particular matter, there is
no longer any doubt that intelligence activities are subject to definable legal
standards
The first comprehensive statement of intelligence law, which delineated
various standards, authorizations, and prohibitions designed to govern our
intelligence operations, was announced by President Ford on February 18,
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1976 " After two years of experience with President Ford's order, President
Carter issued his own executive order which broadens and strengthens the
controls over the intelligence community." For example, this order requires
that various procedures be developed, subject to the approval of the Attorney
General, to govern the complete range of collection and dissemination
practices by all intelligence agencies when the information collected or
disseminated pertains to persons entitled to the protection of the United States
Constitution." The United States is the only country that has issued such a
comprehensive, statement
President Carter also ordered that the government's document classifica-
tion systerh be changed. s5 This new executive order officially embraces the
principle that even a properly classified document should sometimes be
declassified if the public interest in disclosure outweighs the damage to
national security that might reasonably be expected from disclosure." The
order also creates an administrative mechanism, complete with disciplinary
sanctions, designed to eliminate any abuses of the system," such as the
unnecessary classification of documents."
Congress has also played an important role in the development of
intelligence law. In 1978, Congress enacted the Foreign Intelligence Surveil-
lance Act (PISA)," which mandates judicial review of certain proposals from
intelligence agencies regarding the conduct of intelligence-related electronic
surveillance in the United States 40 Moreover, the Attorney General retains sole
authority to approve agency-certified surveillance applications before they are
submitted to the court.'' This judicial and executive review process helps
ensure that only necessary and carefully considered electronic surveillances ,
will be initiated 42 Governing standards for intelligence operations are also
provided by the Case-Zablocki Act, which requires that Congress be advised of
any international agreement to which the United States is a party, including
agreements between intelligence services.'s Both the Senate and the House of
Representatives have created independent committees with primary responsi-
bility for overseeing the activities of the intelligence agencies." The Freedom
of Information Act 45 and the Privacy Act 46 have also had a significant effect
on the information collection, dissemination, and storage practices of the
intelligence agencies.
For the past three years (1976-1979), Administration and Congressional
representatives have endeavored to develop comprehensive charter legislation
that would delineate proper and improper intelligence activities 47 This goal,
however, has proved far more elusive than many had anticipated. Intelligence
agencies are called upon to operate in societies with vastly different cultures,
most of which we do not fully understand, and to provide services in an
atmosphere of international political tension and volatility. The effort to reach
agreement on a charter that gives the agencies sufficient flexibility to meet
changing situations to protect our security, without delegating virtually
unlimited discretion, has been herculean
On February 8, 1980, Senators Huddleston, Mathias, Bayh, and Gold-
water introduced the very complex and comprehensive National Intelligence
Act of 1980 (S 2284) 45 With few exceptions, S. 2284 represented a consensus
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nized " A final factor that weighs in the balance is the government's ability to
pursue its goal in a manner less intrusive on fundamental personal liberties 6'
Utilizing this balancing standard, courts have held it constitutional for the
United States to compel private citizens to disclose their contributions to
presidential campaigns," to require private lobbyists for foreign governments
to register,63 and to require citizens acting as agents of a foreign power to dis-
close the details of their agency and their activities 64 The law is less settled,
however, when the government obtains information about an individuals
activities without his consent, and under circumstances in which that person is
not subject to legislative, iudicial or administrative compulsion Judicial
opinions indicate that it is not unconstitutional for an undercover agent in a
law enforcement investigation to obtain information that a person is willing to
disclose, even though that disclosure is induced by some form of deception "
NevertheleSs, when the information disclosed concerns political activities and
is gathered by a law enforcement agency for purposes other than criminal
prosecution the practice may be unconstitutional 66
Although these decisions are helpful, they do not specifically address the
different considerations that exist when the information is sought by an
intelligence agency for intelligence-gathering rather than law-enforcement
purposes " If the government can compel agents of foreign powers to register
, and describe their political activities, is it unconstitutional to place covert
domestic agents in those same foreign agent groups to obtain information?"
Case law indicates there is no absolute answer and that each situation must be
carefully considered, balancing both the need of the government and the
effect on the individual 69
The Executive Branch has tried to provide some guidance in this area
President Carter's Executive Order on United States Intelligence Activities
generally prohibits an intelligence agency from covertly placing agents in any
organization in the United States unless the organization is acting on behalf of
a foreign power and is primarily composed of individuals who are not United
States persons,7� or unless the infiltration is undertaken on behalf of the FBI as
part of a lawful bureau investigation 7' The order also permits agencies to have
employees participate in organizations, without disclosure of their intelligence
affiliation, in certain narrow circumstances under publicly available guidelines
approved by the Attorney General " The CIA, for instance, is not required to
disclose participation by agency employees in domestic organizations for the
purpose of developing individual associations and credentials needed to
substantiate a cover employment." Approval of such undisclosed participation
must be given by an appropriate CIA senior official, and all such approvals are
subject to review by the Attorney General " These procedures go considerably
beyond the requirements of any existing statute or judicial decision They
reflect an awareness of the chilling effect that undisclosed government
involvement may have on the exercise of First Amendment freedoms and
privacy Thus, the procedures attempt to balance the competing interests of
the individual and the government by defining categories of permissible
participation and by requiring appropriate review in each case
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B. Fourth Amendment Issues
Another constitutional provision often at issue in intelligence gathering is
the Fourth Amendment's prohibition against unreasonable searches and
seizures 75 Intelligence techniques involve traditional searches as well as the
utilization of new technology that has not yet been considered by the courts
The FISA 76 requires that a court order be obtained for most traditional forms
of wiretapping or eavesdropping conducted within the United States 77 Such a
warrant is also required before the government employs most surveillance
devices in the United States to gather information under circumstances where
there is -a reasonable expectation of privacy and a warrant would be required
for law-enforcement purposes "78 For example, consider the instrument known
as a beeper. This device is attached to a vehicle and emits periodic radio sig-
nals which enable the person monitoring the device to determine the location
of the vehicle The FISA does not require a court c,-der before a beeper can be
used to determine the location of a foreign agent's ca - unless, under applicable
decisions, a court order would be required if the FBI used such a device to'lo-
cate a bank robber. Thus, while the Fourth Amendment's applicability to the
use of beepers is not yet completely clear, these devices have been involved in
numerous criminal cases and there is some judicial precedent to which
intelligence agencies can turn for guidance 79
The rapid development of technology, however, permits intelligence
agencies to use surveillance devices that have never had the benefit of judicial
review. As each new technique is considered, the Department of Justice must
determine whether it is necessary to seek court approval before using the
device. The FISA thus poses a problem The court's jurisdiction under the Act
is limited to issuing orders for electronic surveillance as defined in the Act."
Yet the definition of electronic suiveillance itself requires consideration of
judicial interpretations of the Fourth Amendment, and there may not be any
precedent covering a particular new technology. For example, case law
indicates that a court order must be obtained before a microphonic surveil-
lance device is used to intercept a private conversation if the communicant has
a reasonable expectation of privacy.8' The cases, however, do not clearly
define the limits of such an expectation. Placing such a listening device in a
home, office, or other private location requires a warrant." Using a tape
recorder to record a conversation that can be heard by an individual lawfully
in an adjacent room does not require a warrant " Use of a parabolic
microphone, such as those used by television crews to enhance the entertain-
ment value of professional football, may well require a warrant." It is often
difficult, therefore, to determine when a particular surveillance technique
requires a warrant. For instance, suppose an intelligence agency is able to use a
normal, readily available tape recorder to listen to sounds that are discernible,
though not intelligible, to the human ear without any physical intrusion, and
then subject that recording to audio enhancement to render the sounds
intelligible. Is that activity one which would require a warrant if undertaken
for law enforcement purposes? The answer is not clear 89
Consider a similar issue. No one would suggest that the FBI must obtain a
warrant before reading the daily newspaper. The FBI may act on the basis of
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information contained in the paper without the slightest suggestion that it has
undertaken a search. If members of a criminal conspiracy decide to use the
classified advertisement section of the paper to communicate their plans, an
FBI agent may certainly read that same section and, if clever enough, discover
the conspiracy. The situation is undoubtedly the same if the advertisement is
published in a foreign language. Suppose, however, the conspirators believe
their advertisement is completely indecipherable by outsiders because it is
written in a complicated mathematical code generated by a computer that is
beyond the state of the art Assume further that the FBI is able to break that
code by using an even more sophisticated computer. Surely most people would
agree that the FBI has not undertaken esearch within the meaning of the
Fourth Amendment. The answer, however, is uncertain. It is, of course,
possible to argue that the conspirators had a reasonable expectation that their
communications were secret. Nevertheless, the decision to put those communi-
cations in the public domain, even though in cryptic form, may justify the
conclusion that their privacy expectation is not one that the courts are
prepared to protect from governmental surveillance. This analysis rests, in
part, on reported cases which indicate that one who broadcasts a message on a
radio, a public communications medium, does not have an expectation of
privacy,86 and in part, on eases which permit police, without a warrant, to take
trash from outside a person's home and subject it to chemical analysis to
'determine whether any drugs have been discarded 8'
These First and Fourth Amendment issues, many of which involve
attempts to apply case law in novel contexts, are typical of those presented to
the Department of Justice. The precedents developed and rules promulgated
by the Justice Department, however, are often not subject to judicial review or
public comment Thus, the American principle of checks and balances can be
eviscerated when it comes to intelligence activities. It is extremely important,
therefore, that we institutionalize in the Executive Branch a process for
obtaining a multiplicity of views on the fundamental legal issues arising from
intelligence activities " Tor example, in the Justice Department, the Attorney
General receives advice on these matters from former CIA employees,
members of the American Civil Liberties Union, and the Department's Office
of Intelligence Policy and Review. It is likewise important for intelligence
agencies to encourage meaningful in-house criticism of their proposals The
ability to argue against his client's project is one of the most difficult, but most
important, skills a lawyer must acquire if his practice is to meet minimal
standards of social responsibility." This is particularly true in the government
This process of debate, consideration of conflicting opinions, and careful
review will help ensure that intelligence decisions are properly and legally
made Although this process may not always result in perfect legal decisions, it
will at least guarantee that the legal issues are considered, the appropriate
questions asked, and reasonable conclusions reached
IV. THE FUTURE OF INTELLIGENCE LAW
The evolution of the law applicable to intelligence activities is directly
influenced by world conditions The current emphasis on legal guidelines for
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intelligence operations is a result of past excesses which were disclosed during
a period in our history when a President was forced out of office and an
unpopular war was prolonged despite vigorous public dissatisfaction 9� Current
events, however, may provoke a different analysis Some may now argue that
attempts to regulate intelligence activities are futile and self-destructive
Others may seriously question the costs and benefits of regulation in view of
the enormity of hostile acts abroad While such reexamination is necessary and
constructive, it should not cause us to lose sight of the past Watergate did
happen CHAOS and COINTELPRO were actual programs 9' Those abuses
had their beginnings in action which appeared necessary and reasonable to the
officials who began them As the programs grew, however, the justifications
expanded and responsibility disappeared
The proliferation of law governing intelligence activities has not been
entirely without cost It has limited some of the flexibility and ease of action
formerly enjoyed by intelligence officials." We have gained, however, much
more than we have lost Intelligence agencies now operate under the most
lucid statements of authonty, and limitations thereon, ever available. The
protection of individual rights and liberties from infringement by intelligence
activities is at a high point. At the same time, there are few, if any, cases in
which it has proved impossible under the law to collect truly vital intelligence
information Rather, intelligence officials think more carefully and answer
more precisely before proposing or authorizing particular activities
Nevertheless, there is still more work to be done in this area Existing law
provides inadequate protections to the people who serve our nation as
intelligence officers. They need, and deserve, better protection against those
who would intentionally disclose their secret mission and jeopardize their
safety by revealing their identities Although public comment and criticism of
intelligence activities and specific operations is proper, exposing the identities
of particular intelligence personnel and thereby placing them in danger serves
no legitimate purpose. Our proper concern for individual liberties must be
balanced with a concern for the safety of those who serve our nation in
difficult times and under dangerous conditions 93 We must also adopt legal
procedures to resolve the problem of graymail, where criminal defendants
who have had access to classified information escape punishment by threaten-
ing to disclose secret information during a criminal trial 94 Although it is not
impossible to prosecute such cases," the court's ability to protect legally
irrelevant secret information from unnecessary disclosure must be
strengthened
Further protection for the intelligence community could also be achieved
by a change in the Hughes-Ryan Amendment, which requires the timely
reporting of covert action to seven congressional committees " This cumber-
some procedure disseminates knowledge of intelligence operations to such a
large number of persons that the secrecy essential to their success becomes
doubtful A carefully crafted amendment to the statute should require
reporting only to the Senate and House intelligence committees 97 This would
give Congress the information it needs without unduly jeopardizing intelli-
gence projects
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While we pursue legislative solutions to these problems, the process of self-
regulation in the Executive Branch must continue Many of the regulations are
publicly available," and as they gain wider review we will all benefit from the
analysis and critical comment of others " The need for governmental self-
regulation, however, will increase as modern technology grows ever more
sophisticated The state of the art is already so advanced as to bear little
relation to traditional Fourth Amendment analysis, and will continue to
outstrip the development of decisional law for the foreseeable future
Although these technological advances will benefit national security by
providing increased efficiency of intelligence gathering, they will also increase
the responsibility for fashioning proper safeguards in intelligence law The
interpretation of constitutional provisions, statutes, executive orders, and
procedures affecting intelligence gathering will evolve in response to changing
perceptions and new experiences While we must guard against the adoption
of an overly pliant construction of our self-imposed rules, I am confident that,
in the light of experience, we can continue to devise new standards which do
not compromise our essential liberties and which support a strong intelligence
community equal to its critical mission
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REFERENCES
A number of congressional committees and executive commissions have thoroughly
investigated instances of misconduct by the intelligence agencies E g S Rep No 755, 94th
Gong, 2d Seas (1976) hereinafter cited as the Church Committee Report, United States'
Intelligence Agencies and Activities, Performance of the Intelligence Community,
Hearings Before the House Select Comm on Intelligence, 94th Gong , 1st Seas (1974),
Domestic Intelligence Operations for Internal Security Purposes, Hearings Before the
House Comm on Internal Security, 93rd Cong 2d Sess (1974), Staff of Subcomm on
Constitutional Rights of the Senate Comm on the Judiciary, 92nd Gong 2d Seas Report on
Army Surveillance of Civilians, A Documentary Analysis (1972), Commission on CIA
Activities Within the United States, Report to the President (June 1975), (hereinafter cited
as the Rockefeller Commission Report)
2 A number of authors have grappled with the evolving rule of law in the area of national se-
curity E g, Theoharis & Meyer, The "National Security" Justification for Electronic
Eavesdropping An Elusive Exception, 14 Wayne L Rev 749 (1968), Developments in the
Law�The National Security Interest and Civil Liberties, 85 Han/ L Rev 1130 (1972),
Comment, Privacy and Political Freedom Applicability of the Fourth Amendment to
"National Security" Investigations, 17 UCLA L Rev 1205 (1970), Note, Foreign
Security Surveillance and the Fourth Amendment, 87 Han/ L Rev 976 (1974)
3 The difficulty of distinguishing between domestic and foreign intelligence-gathering
operations has partially resulted from an inability to define clearly the terms applicable to
vaTIOUS types of surveillances The confusion has generally been clarified as case law and
statute have increasingly abandoned or defined the term national security For example, in
Katz v United States, 389 U S 347 (1967), the Court reserved decision on the question of
the applicability of the Fourth Amendment warrant requirement to national security
electronic surveillance Id at 358 n 23
In United States v United States Dist Court (Keith) 407 US 297 (1972), the Court analyzed
the domestic aspects of national security but once again reserved -the issues which may be
inVolved with respect to activities of foreign powers or their agents" Id, at 322 (footnote
omitted), see United States v Smith, 321 F Supp 424, 429 (C D Cal 1971) (applicability of
warrant requirement to foreign national security surveillance not decided, although
warrant mandated for domestic security surveillances) Keith may have added to the
confusion surrounding the meaning of national security The opinion emphasizes that it is
often difficult to distinguish between domestic and foreign threats to the nation's security
407 U S at 209 n 8 The Court acknowledged that Title III of the Omnibus Crime Control
and Safe Streets Act of 1968, 18 U S C "2510-2520 (1976), uses the term national security
to refer only to the activities of foreign powers Id � 2511(3) Nevertheless, the Court
continued to apply the term national security to both domestic and foreign intelligence
operations 407 US at 309 n 8
In Zweibon v Mitchell, 516 F 2d 594 (D C Cir 1975) (en bane), cert denied, 425 U S 944
(1976), the court extended Keith and the warrant requirement to a wiretap of a domestic or-
ganization that is neither the agent of, nor acting in collaboration with, a foreign power,
even if the surveillance is undertaken in the name of foreign intelligence gathering The
court, in a very long footnote, attempted to distinguish between "internal security" or
-domestic secunty" and "foreign security " Id at 613 n 42 The court's efforts failed,
however, when it concluded "'National security' will generally be used interchangeably
with 'foreign security,' except where the context makes it clear that it refers to both 'foreign
security and internal security " Id On remand, the district court established its own
categorization and distinguished "domestic security," "domestic national security," and
-foreign security" surveillances Zweibon v Mitchell, 444 F Supp 1296, 1299 n 3 (D D C
1978), rev d in part and remanded on other grounds, 606 F 2d 1172 (D C Cir 1979)
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Although these classifications appear to correlate 'toughly with the distinctions provided in
Exec Order No 12036, 3 C FR 112 (1979); the terminology used may foster continued
confusion
4 Exec Order No 12036, ' 4-206, 3 CF R 112, 133 (1979)
5 Id � � 4-202, -205, 3 C FR 112, 133 (1979) (emphasis added) Foreign intelligence is
defined as -information relating to the capabilities, intentions and activities of foreign
powers, organizations or persons,- id � 4-205, 3 C F R at 133, and counterintelligence is
defined as -information gathered and activities conducted to protect against espionage and
other clandestine intelligence activities, sabotage, international terronst activities or ssqssi-
nations conducted for or on behalf of foreign powers, organizations or persons "Id '4-202,
3 C F R at 133 Intelligence organizations have not always had the benefit of such specific
definitions Sherman Kent, former chairman of the CIA's Board of National Estimates,
descnbed intelligence in his pivotal book as comprising three definitional subjects
knowledge that our nation must have regarding other nations to assure itself that planning
and decisionmaking will not be conducted in ignorance, an organization structured to
obtain, centralize, and evaluate that knowledge, and the activity of gathering such
knowledge S Kent, Strategic Intelligence for Amencan World Policy at ix (1949)
6 Although many of the regulations and guidelines are not available in published form, they
can be obtained from the agency which they govern Requests should be made in the same
manner as requests under the Freedom of Information Act
7 All foreign intelligence and counterintelligence investigations are handled by the Intelli-
gence Division (Division 5), and all domestic security and international terronsm investiga-
tions are within the purview of the Criminal Investigation Division (Division 6) See note 6
.supra
8 Exec Order No. 12036, ' 4-107, 3 C FR 112, 133(1979)
9 See note 3 supra
10 See notes 41-51 infra and accompanying text
11 Positive foreign intelligence surveillances differ markedly from those in criminal investiga-
tions For example, a foreign intelligence surveillance may be undertaken without probable
cause to believe a cnme has been committed, and may be of considerable duration and
scope United States v. Humphrey, 456 F Siipp 51, 56 (ED Va 1978) Its purpose LS to
gather information about the intentions and capabilities of a foreign government, not to
obtain admissible evidence of a crime Id But see United States v Stone, 305 F Supp 75,
82 (D.D C 1969) (foreign intelligence wiretap used as evidence in criminal trial), United
States v O'Baugh, 304 F Supp 767, 768 (D DC 1969) (wiretap of embassy used as
evidence in criminal proceeding) Foreign counterintelligence activities more closely
parallel law enforcement activities Nevertheless, while it is true that many activities of the
targets of countenntelligence surveillances may be criminal, see, e.g., 18 U.S C � 641
(1976) (relating to unauthorized use of government property), id " 792-799 (relating to
espionage), id � � 2151-2157 (relating to sabotage), id ' � 2381-2391 (relating to treason,
sedition, and subversive activities), the primary objective of the surveillance is not
preparation for prosecution But see, United States v Humphrey, 456 F Supp at 56
(distinguishing between foreign intelligence surveillance and domestic surveillance and
stating that -It would seem rare that the government would engage in domestic electronic
surveillance without some plans to prosecute at some time '') Zweibon v. Mitchell, 516 F.2d
594, 648 (D.0 Cir 1975) (en bane) (claiming it is a "myth to characterize national security
surveillance as purely non-prosecutorial in the criminal sense"), cert denied, 425 U S 944
(1976) The objective of a counterintelligence surveillance is to identify, isolate, and prevent
breaches of security in the foreign intelligence and national defense apparatus The
distinction between certain intelligence surveillances and law enforcement activities was
carefully set forth in the Senate Report accompanying the Foreign Intelligence Surveillance
Act, S Rep No 604, 95th Gong, 1st Sess 4-7 (1977), reprinted in 1978 US Code Cong &
Ad News, 3904,3905-09
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12 See note 11 supra There has been some concern regarding the adeouacy of the espionage
statutes in certain circumstances See Espionage Laws and Leaks Hearings Before the
Subcomm on Legislation of the House Permanent Select Comm on Intelligence, 96th
Cong , 1st Seas (1979) See generally Edgar & Schmidt, The Espionage Statutes and the
Publication of Defense Information, 73 Colum L Rev 929 (1973), Nimmer, National
Security Secrets v Free Speech The Issues Left Undecided in the Ellsberg Case, 26 Stan
L Rev 311 (1974)
13 Only a small percentage of all counterintelligence cases can be considered for successful
criminal prosecutions, and investigations of foreign intelligence agents are seldom conduct-
ed from the outset as they would be were eventual prosecution expected Many counterin-
telligence professionals believe that criminal prosecutions should never be brought against
hostile agents because doing so may only result in then replacement by other, unknown
agents of whose activities we may not be aware Moreover criminal proceedings may not
only confirm the accuracy of classified information that has been passed to a foreign power,
but may also reveal at least some of the matenal to a far wider audience This problem is
known as -graymail "See Senate Select Comm on Intelligence, 95th Cong , 2d Seas, Report
on National Security Secrets and the Administration of Justice (Comm Pring 1978)
Graymail problems, however, are not insurmountable For example, in United States v
Kampiles, 609 F 2d 1233-(7th Cir 1979), the trial court's procedures and judgment avoided
the graymail problem The trial court prevented classified information from being
introduced at trial by issuing a protective order after in camera, ex parte proceedings in
which the government presented evidence of the sensitive document that was passed to the
Soviets and of the FBI's counterintelligence investigation into the document's disappear-
ance Id at 1248 The court of appeals upheld the espionage conviction based upon the de-
fendant's confession that he had met with and sold a classified document to a Soviet
intelligence officer and upon sufficient other evidence to corroborate the reliability of the
defendant's confession Id. at 1238
The Administration has introduced legislation to resolve the graymail problem and to
establish a workable and fair procedure for handling classified information in �criminal
cases See note 94 Infra
14 See note 5 supra and accompanying text
15 There is continuing debate concerning the need for and scope of legitimate government
secrecy Compare Snepp v United States, 100 S Ct 763, 765 n 3 (1980) (stating -the
government has a compelling interest in protecting both the secrecy of information
important to our national secunty and the appearance of confidentiality so essential to the
effective operation of our foreign intelligence service-) and Colby, Intelligence Secrecy and
Security in a Free Society, Inel Secunty 3 (Fall 1976) (setting forth a conceptual framework
for limiting unnecessary government disclosures) with Church Committee Report, supra
note 9, (Bk I) at 16 (recognizing the dangers of excessive secrecy to a democracy) and M
Halperin & D Hoffman, Top Secret National Security and the Right to Know (1977)
(arguing that the secrecy veil of the intelligence community needs to be pierced) See
generally Investigation of Publication of Select Comm on Intelligence Report Hearings
Before the House Comm on Standards of Official Conduct, 94th Cong , 2d Seas (1976)
16 See pt III infra
17 The Foreign Intelligence Surveillance Act of 1978, 50 US CA �" 1801-1811 (West Supp
1979), does provide judicial review of certain intelligence activities See note 40 infra The
proposed National Intelligence Act of 1980, S 2284, 96th Gong, 1st Seas, 126 Gong Rec S
1307 (daily ed Feb 8, 1980) (hereinafter cited as S 2284), would expand the scope of
judicial review to cover physical searches as well as electronic surveillance both within the
United States and abroad Id ' 801
18 Executive Order 12036 and its implementing regulations create an effective structure for
oversight of intelligence activities within the Executive Branch The duty to identify,
inspect, and report unlawful or improper activity is placed upon senior officers throughout
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the intelligence community Exec Order No 12036, ' 1-7, 3 CF R 112, 119-120 (1979)
This obligation is reinforced and monitored by the Inspectors General and General Counsel
for each agency Id � 3-2, 3 C F R at 131 These officers are required to investigate and re-
port to the Intelligence Oversight Board any activities that raise questions of legality or
propriety Id The executive order also gives the Attorney General substantial oversight and
review responsibilities Id to establish and approve procedures for each agency which will
ensure compliance with law and protection of constitutional rights and privacy Id � 3-305,
3 C F R at 131 To advise and assist the Attorney General in connection with his
intelligence-related responsibilities, the Office of Intelligence Policy and Review was
established 45 Fed Reg 13729 (1980) (to be codified in 28 C FR � 0 33) This office is cur-
rently staffed by ten attorneys and is under the direction of the Counsel for Intelligence Pol-
icy The Executive Branch oversight apparatus also includes the President's Intelligence
Oversight Board (I0B), which is composed of th?ee individuals appointed by the President
Exec Order No 12036, ' 3-1, 3 C F.R at 130 The IOB periodically reviews the oversight
procedures and guidelines of each intelligence agency, forwards reports of illegality to the
Attorney General, and informs the President of its findings and any serious questions of le-
gality or propriety Id. � 3-102, 3 C.F R at 130-31 This comprehensive system of oversight
within the Executive Branch is supplemented by extensive review in Congress See note 96
Infra
19 There is clear evidence that General Washington authorized and relied upon substantial
intelligence activities in the conduct of the Amencan Revolution For an excellent account
of the history and evolution of United States intelligence capabilities, see A Dulles, The
Craft of Intelligence (1963) See also H Ransom, Central Intelligence and National Security
(1958), Church Committee Report, supra note 1, (Bk VI) at 9-15
20 The first permanent intelligence agency was the Office of Intelligence established by the
Navy in 1882 Church Committee Report, supra note 1, (Bk VI) at 309 Three years later
the Army organized its own intelligence unit, the Military Intelligence Division Id
21 A Dulles, supra note 9, at 40-41.
22 H Ransom, The Intelligence Establishment 65-76 (1970)
23 A Dulles, supra note 19, at 42-44
24 50 U S C � 403 (1976)
25 Id � 403(dX1)-(5)
26 Id. � 403(dX3)
27. Rockefeller Commission Report, supra note 1, at 61 S 2284, supra note 17, proposes to re-
place the National Security Act provisions governing intelligence activities As Senator
Huddleston noted when he introduced S 2284 -The National Security Act of 1947, the cur-
rent 'charter' for intelligence activities, is vague and cursory As Clark Clifford, a primary
author of that legislation, told this committee, that act' was considered interim legislation
that would be replaced once the Executive and Congress better knew what was required
(In S 2284) we have given the intelligence community authority to do what needs to be
done" 126 C,ong Rec S 1305 (daily ed Feb 8, 1980)
28 18 U S C � � 792-794 (1976)
29 A key aspect of the present structure and functioning'of the intelligence community is that
of all the organization; engaged in foreign intelligence, only the CIA has been created by
legislation The National Security Agency, the FBI, and the Defense Intelligence Agency
have been operating without legislative charters
30 For example, there are a variety of statutes which, if applied literally, would limit the
ability of the FBI to engage in undercover investigative operations for the collection of
foreign intelligence or counterintelligence E g. 31 U S C � 484 (1976) (restncting the use of
proceeds from government operations), td ' 521 (restricting the deposit into banks of
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proceeds from government operations), id � 869 (restricting acquisition or creation of
proprietary corporations or business entities) In recent years. Congress has used the
Department of Justice Appropriation Authorization Act to provide an annual waiver from
these requirements for intelligence operations See, e g Dep t of Justice, Appropriations
Act, Fiscal Year 1980, P L 96-132, � 7(a), 93 Stat 1040, 1045-46, reprinted in (1979) U S
Code Gong & Ad News
31 It was not until 1972 that the Supreme Court acknowledged the Executive Branch did not
have full discretion to undertake intelligence operations to protect national security United
States v United States Dist Court (Keith), 407 US 297, 316-317 (1972) In fact, the Justice
Department declined prosecution of individuals involved in two large-scale mail opening
programs operating between 1953 and 1973 because of the ambiguity of the law as it
related to intelligence operations during that period Dept of Justice, Report Concerning Its
Investigations and Prosecutorial Decisions With 'Respect to Central Intelligence Agency
Mail Opening Activities in the United States (1977) Since Keith, however, the courts have
attempted to define the constitutional limits of intelligence investigations See note 3 supra
32 Exec Order No 11905, 3 C F R 90(1977)
33 Exec Order No 12036, SC FR 112 (1979) For example, President Carter's order goes well
beyond President Ford's order in specifying the preconditions for targeting United States
persons for electronic surveillance Compare id � 2-202, 3 C F R at 126 with Exec Order
No 11905, ' 5(bX2), 3 C FR 90, 100 (1977) President Carter's order also governs, for the
first time, television and movie surveillance, Exec Order No 12036, ' 2-203, 3 C F R at
126, and covert procurement and contracting Id ' 2-303, 3 C F R at 129
34 Exec Order No 12036, � 2-201, SC FR 112, 126 (1979)
35 Exec Order No 12065, 3 C FR 190(1979)
36 Id ' 3-303, 3 C FR 190, 197 (1979)
37 Id � 5, SC FR 190, 201-04 (1979)
38 Id � 1-3 to -6, 3 C FR 190, 193-95 (1979)
39 Foreign Intelligence Surveillance Act of 1978, Pub L No 95-511, 92 Stat 1783 (codified at
50 USC A �� 1801-1811 (West Supp 1979))
40 FISA directs the Chief Justice to -publicly designate seven district court judges from seven
of the United States judicial circuits who shall constitute a court which shall have
jurisdiction to hear application for and grant orders approving electronic surveillance
anywhere within the United States 50 USC A � 1803(a) (West Supp 1979) The Chief
Justice is also directed to designate three judges -who together shall comprise a court of re-
view which shall have junsdiction to review the denial of any application made under this
Act Id � 1803(b) The Attorney General, rather than the court, is authorized to approve
electronic surveillance of certain communications transmitted by means of communications
used exclusively between or among foreign powers and of technical intelligence from
property under the open and exclusive control of a foreign power Id ' 1802(aX1XA)-(B)
The Attorney General must advise the court of his actions id � 1802(aX3)
41 Id � 1804
42 Experience has demonstrated that our intelligence agencies are functioning well under
FISA The record refutes the argument that congressional consideration of such statutes
would undermine the entire intelligence apparatus of the United States See generally S
Rep No 379, 96th Cong , 1st Sess (1979)
43 1 U S C � 112(b) (1976 & Supp 11 1978)
44 The Senate Select Committee on Intelligence was created by S Res 400, 94th Cong , 2d
Seas, /12 Gong Bee 14673-75 (1976) The House Permanent Select Committee on
Intelligence was established by H B Res 658, 95th Gong. 1st Sess , 123 Cong Rec H7104-
06 (daily ed July 14, 1977)
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45 5 U S C 552(1976)
46 Id � 552a
47 One of the purposes of the Church Committee was to create a record to serve as a
foundation for drafting such legislation Church Committee Report, supra note 9
48 S 2284, supra note 17
49 President Carter stated there was -virtually complete agreement (between the Executive
Branch and the Senate Select Committee on Intelligence) on the organization of the
intelligence community and on the authorizations and restrictions pertaining to intelligence
collection and special activities" 126 Cong Rec S 1307 (daily ed Feb 8, 1980) He
continued, however, to state that "a few issues remain to be resolved "Id One of the pri-
mary disagreements between the administration and the authors of S 2284 relates to prior
reporting to Congress of covert operations and sensitive collection operations See note 98
infra
50 See note 53 infra
51 For example, S 2284, supra note 17, prohibits assassination, id ' 131, covert domestic
propaganda, id � 133, covert contracting with educational institutions, id � 134, and
accomplishing indirectly what cannot be done directly, id � 135
52 Fortunately for all Americans, the vast preponderance of the information our government
seeks comes from foreign persons and organizations, most of them located outside the
United States In all cases, the federal government collects the information this country
needs without intentionally violating United States law United States law contains few
limitations on the collection of intelligence from foreign sources See, e g, 50 USCA �
1802(a)(1XA)(i) (West Supp 1979) (electronic surveillance directed at communications
exclusively between or among foreign powers may be approved by the Attorney General
without court order), Exec Order No 12036, � 2-208, 3 C F R 112, 128 (1979) (restricting
only the collection of nonpublicly available information concerning United States Persons)
53 A United States person is defined in Executive Order 12036 as -a citizen of the United
States, an alien lawfully admitted for permanent residence, an unincorporated association
organized in the United States or substantially composed of United States citizens or aliens
admitted for permanent residence, or a corporation incorporated in the United States "
Exec Order No 12036, � 4-214, SC F.R 112, 133(1979) FISA uses a similar definition 50
U.S C A. � 1801(1) (West Supp 1979) S 2294, supra note 17, however, provides a more lim-
ited definition of United States person, Id � 103(21) For example, it excludes corporations
incorporated in the United States and unincorporated associations organized in the United
States which are -openly acknowledged by a foreign government or governments to be
directed and controlled by such foreign government or governments" Id One's status as a
United States person is, in general, not determined by one's location Thus, a United States
citizen abroad remains a United States person for intelligence law purposes, while a foreign
visitor to this country does not automatically become a United States person upon entry into
this country There are a number of restrictions in the law which protect foreign visitors
from unwarranted intelligence activities in this country, but those limitations are signifi-
cantly different from the ones applicable to United States persons For example, Executive
Order 12036 protects United States persons and foreign visitors alike from unregulated
covert electronic or mechanical monitoring, physical searches, mail surveillance in the
United States, and from unlawful physical surveillance by the FBI Exec Order No 12036,
" 2-202 to 2-206, 3 CF R at 126-27 The protections provided for foreign visitors,
however, are far more limited than those mandated for United States persons See e g, id �
2-208, 3 C F R at 128
54 See e g, Exec Order No 12036, � 2-1 to -3,3 C FR 112, 125-30 (1979)
55 The collection, retention, and dissemination of publicly available information is not
regulated by Executive Order 12036 or by the procedures for the various intelligence
agencies which were approved by the Attorney General pursuant to this order Exec Order
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No 12036 � 2-201, -208, 3 CF R 112, 126, 128(1979) Consequently, the definition of pub-
licly available information is a threshold consideration to the application of legal standards
to intelligence gathering The procedures for the CIA and the Department of Defense
define the term publicly available similarly The Defense Department's definition provides
"'Available publicly' means information that has been published oi broadcast for general
public consumption, is available upon request to a member of the general public, could law-
fully be seen or heard by any casual observer, or is made available at a meeting open to the
general public "See note 6 supra S 2284, supra note 17, fails to define what information is
publicly available but provides the following standard for the collection and use of publicly
available information "Publicly available information concerning any United States person
may be collected by an entity of the intelligence community when such information is
relevant to a lawful function of that entity, and may be retained and disseminated for
lawful governmental purposes" Id � 211(c)
56 The First Amendment freedoms of association and of expression are implicated whenever
the government compels an individual to delineate his political affiliations before a
legislative committee, e g, Eastland v United States Servicemen's Fund, 421 US 491, 509
(1975), Gibson v Florida Legislative Investigation Comm. 372 U S 539, 544-46 (1963),
Sweezy v New Hampshire, 354 U S 234, 249-50 (1957), or a grand Jury, e g, Branzburg v
Hayes, 408 U S 665, 690-91 (1972), Bursey v United States, 466 F 2d 1059, 1085-86 (9th
Cir 1972), In re Wood, 430 F Supp 41, 45-46 (S D N Y 1977), /n re Verplank, 329 F
Supp 433, 437-38 (C D Cal 1971), or to identify his political beliefs as a condition of exer-
cising first amendment rights, e g, Lamont v Postmaster Gen, 381 US 301, 305-07(1965),
NAACP v Alabama, 357 U S 449, 462 (1958), or of obtaining government employment,
e g, Shelton v Tucker, 364 US 479, 487-88 (1960) See generally L Tribe, American
Constitutional Law � 12-2, at 581-82 (1978)
57 There are, however, severe limits on the government's right to compel information For
example, it is unconstitutional for a state to compel a private political organization to
furnish its membership list to the state where the effect of doing so would be to subject the
organization's members to economic reprisal, loss of employment, or physical coercion E g,
Louisiana ex rel Gremillion v NAACP, 366 U S 293, 295-96 (1961) (upholding temporary
injunction restraining enforcement of statute requiring certain not-for-profit organizations
to file membership fist(s), Bates v City of Little Rock, 361 U S 516, 527 (1960) (invalidating
occupational license tax statute which required membership list), NAACP v Alabama, 357
U S 449, 466 (1958) (reversing civil contempt judgment against NAACP for refusing to
disclose its membership list in violation of foreign corporation registration statute) These
foreseeable consequences would dramatically chill the individual's freedom of expression
and of private political accriciation
'58 Bates v City of Little Rock, 361 U S 516, 525 (1960)
59 Gibson v Florida Legislative Investigation Comm 372 U S 539, 546 (1963)
60 Buckley v Valeo, 424 U.S 1, 64-68 (1976) (per curiam) Exacting' scrutiny is necessary even
if any deterrent effect on the exercise of First Amendment rights arises, not through direct
government action, but indirectly as an unintended but inevitable result of the govern-
ment's conduct in requiring disclosure "Id at 65 (citing NAACP v Alabama, 375 U S 449,
461 (1958))
61 Lamont v Postmaster Gen 381 U S 301, 310 (1965) (Brennan, J, concurring), Shelton v
Tucker, 364 U S 479 488 (1960) This ad hoc balancing test has been criticized for being "so
unstructured that it can hardly be described as a rule of law at all "T Emerson, The Sys-
tem of Freedom of Expression 16 (1970) Nevertheless, the Supreme Court in Buckley v
Valeo, 424 US 1 (1976) (per curiam), used the balancing test and acknowledged that the
governmental interest in disclosure must be weighed against not only the damage to the in-
dividuals involved but also the injury suffered by the public at large, Id at 64-68 Buckley,
however, made it more difficult to prove a constitutional abridgement by requiring
evidence of such probable harassment resulting from disclosure as was found in NAACP v
Alabama, 357 U S 449, 462 (1958) 424 U S at 72 According to Chief Justice Burger, this
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increased evidentiary burden on litigants challenging compelled disclosure marks a
departure from the "historic safeguards guaranteed by the First Amendment " Id at 238
(Burger, C J, concurring in part and dissenting in part)
62 In Buckley v Valeo, 424 U S 1 (1976) (per ciruam), the Supreme Court upheld the,
requirement of the Federal Election Campaign Act of 1971, 2 U S C � � 431-456 (1976),
that political committees record and transmit to the government the names of individuals
contributing in excess of ten dollars to political committees or independent candidates The
Court considered the substantial governmental interest in maintaining the integrity of the
electoral process to be of such magnitude as to outweigh the possibility of First Amendment
infringements 424 U S at 66-68 The Court upheld the ten-dollar minimal threshold
reporting requirement based upon a finding that it was not irrational Id at 83 This
deference to a complex congressional judgment rspresents the Court's hesitation to
substitute its Judgment for that of the legislature See Shelton v Tucker, 364 U S 479, 490
(1969 (Frankfurter, J, dissenting), cf td at 488 ("legislative abridgement (of First
Amendment freedoms) must be viewed in the light of less drastic means for achieving the
same basic purpose") (footnote omitted)
In a slightly different context, Shelton's least restrictive alternative test has been more
stringently applied In Pollard v Roberts, 283 F Supp 248 (E D Ark), aff 'd per curtam,
393 U S 14 (1968), the district court enjoined a quasi-grand jury investigation which had
subpoenaed essentially the contributor list of the Arkansas branch of the National
Republican Party The prosecutor issued the subpoena in the cOurse of his investigation of
possible election law violations The court, relying on the principles of Shelton, held that
"even if a (s)tate can legitimately compel a limited disclosure of individuals affiliated with a
group, it does not follow that the (state) can compel a sweeping and indiscriminate
identification of all of the members of the group in excess of the (s)tate's legitimate need for
information " /d at 257.
63 The reporting requirements of the Foreign Agents Registration Act of 1938, as amended, 22
U SC � � 601-621 (1976), were upheld against a First Amendment challenge in Attorney
Gen v Irish N Aid Comm, 346 F Supp 1384, 1389-91 (S DN.Y), cert denied, 409 US
1080 (1972) The court found that the disclosure of defendant's activities bore a substantial
relation to a legitimate government interest�informing the government and the public as
to sources of foreign propaganda�and that the government interest outweighed "any
possible infringement of the First Amendment rights of the defendant's members or
� contributors" /d at 1391 The court was careful to emphasize the vital governmental
interest in safeguarding our political process from unacknowledged foreign influences and,
on the basis of these concerns and the foreseeable complications with United States foreign
policy, rejected the First Amendment claim Id
64 There are three basic statutes requiring the registration of individuals or organizations that
serve as spokesmen or agents for, or receive money' from, foreign governments First, 22
US C ' 612 (1976) provides that anyone who acts as an agent of a foreign principal must
file a registration statement with the Attorney General The registration statement must
contain a thorough description of the registrant's business and employees, the agency
relationship, and the activities performed for the principal Second, 18 U.S C � 951 (1976)
requires that anyone who acts as an agent of a foreign government must notify the
Secretary of State Third, 18 U S C � 2386 (1976) provides that organizations which accept
support from foreign governments must register with the Attorney General if they engage
in activities designed to forcibly control or overthrow the United States government, or if
they engage in activities constituting military training This statute has been�successfully
challenged under the fifth amendment See Albertson v Subversive Activities Control Bd ,
382 U S 70, 77-78 (1965)
65 The use of informers or infiltrators in a criminal investigation does not give rise to any viola-
tion of the First or Fourth Amendments Handschu v Special Servs Div 349 F Supp 766,
769 (S D N Y 1972) For Fourth Amendment purposes, a person assumes the risk that any
known party to a conversation concerning criminal conduct is an undercover police agent
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E g , Hoffa v United States, 385 U S 293, 300-03 (1966), Lewis v United States, 385 U S
206, 211 (1966) The Fourth Amendment, however, does restrict the scope of permissible ac-
tivities of an undercover agent See, e.g, Gouled v United States, 255 U S 298, 304-06
(1921) (informant overstepped constitutional bounds when he obtained entry into business
office of suspect by deception and secretly ransacked office and seized incriminating
documents) Infiltration for law-enforcement purposes into a political organization or rally
which might dampen the exercise of First Amendment rights of the participants has also
been upheld Socialist Workers Party v Attorney Gen, 419 U S 1314, 1319-20 (1974),
United States v McLeod, 385 F 2d 734, 750 (5th Cir 1976) Nevertheless, because of the in-
herent danger that First Amendment activities may be significantly impaired, undercover
investigations in university classes or political organization meetings will be sustained only if
there is a substantial government interest to justify the probable impairment of First
Amendment rights White v Davis, 13 Cal 3d 757, 768-73, 533 P 2d 222, 229-32, 120 Cal
Rptr 94, 101-04 (1975) (in bank), see Socialist Workers Party v Attorney Gen, 419 U S at
1319
66 Compare White v Davis, 13 Cal 2d 757, 773, 533 P 2d 222, 232, 120 Cal. Rptr 94, 104
(1975) (in bank) (reversing demurrer of plaintiff's complaint and finding that police
undercover surveillance on university campus, which gathered information that pertained
to no illegal activity, was a Prima facie violation of First Amendment rights) with Fifth Ave
Peace Parade Comm v Gray, 480 F 2d 326, 332-33 (2d Cir 1973) (affirming dismissal of
complaint and finding police surveillance of a large antiwar demonstration to be a perfectly
lawful method of preserving public safety and deterring violence), cert denied, 415 U S 948
(1974) and Anderson v Sills, 56 N .1 210, 229-31, 265 A 2d 678, 688-89 (1970) (reversing in-
junction of widespread police surveillance program and holding that, absent proof of bad
faith or arbitrariness, the Executive Branch should perform detectional and preventive
functions and gather any information reasonably believed to be necessary without judicial
interference) See generally Note, Domestic Intelligence Informants, the First Amend-
ment and the Need for Prior judicial Review, 26 Buffalo L Rev 173 (1976), Note,
Governmental Investigations of the Exercise of First Amendment Rights Citizens' Rights
and Remedies, 60 Minn L Rev 1257 (1976)
67 But cf United States v United States Dist Court (Keith), 407 U S 297, 320 (1972)
(extending Fourth Amendment to domestic security electronic surveillances), Zweibon v
Mitchell, 516 F 2d 594, 611-13 (DC Cir 1975) (en bane) (extending Fourth Amendment to
national security electronic surveillance), cert denied, 425 U S 944 (1976)
68 There is very little case law in this area because of the difficulty of proving sufficiently spe-
cific injuries to overcome the threshold case and controversy standing requirement as
articulated in Laird v Tatum, 408 U S 1(1972) Mere allegations of a subjective chilling im-
pact of government surveillance on First Amendment activities is not an adequate basis for
Justiciability Id at 12-13 Allegations of disruption, harassment, or bad faith are generally
required before one can litigate First Amendment rights when intelligence activities are
involved E g , Berlin Democratic Club v Rumsfeld, 410 F Supp 144, 149-51 (D D C
1976)
69 In Buckley v Valeo, 424 U S 1(1976) (per cunam), the Court refused to grant a blanket ex-
emption from the federal contributor reporting requirements for all minor parties and
independent candidates Id at 74 Instead, the Court established a case-by-case procedure
which allows each such party to prove that disclosure of contributor lists would substantially
impair its members' constitutional rights Id Since Buckley, political parties have had
varying success in the lower courts Compare Wisconsin Socialist Workers 1976 Campaign
Comm v McCann, 433 F Supp 540, 548-49 (E D Wis 1977) (injunction issued relieving
party from complying with Wisconsin Campaign Financing Act) and Partici() Nuevo
Progressista v Hernandez Colon, 415 F Supp 475, 482-83 (D P R 1976) (per cunam)
(injunction issued prohibiting the use of government inspectors to enforce Puerto Rico's
political contribution and disclosure statute) with Oregon Socialist Workers 1974 Campaign
Comm v Paulus, 432 F Supp 1255,1259-60 (D Or 1977) (injunction denied where
Oregon Campaign Disclosure Act was found to have minimal impact on First Amendment
rights of party)
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70 See note 53 supra
71 Exec Order No 12036, � 2-207(a), 3 C F R 112, 127 (1979)
72 Executive Order 12036 and the procedures adopted pursuant to it have established formal
controls over this sensitive form of information gathering Exec Order No 12036, ' 2-207, 3
C FR 112, 127 (1979) Guidelines have been approved thus far for the CIA, the
Department of Defense, and the FBI See note 6 supra But see Wisconsin Socialist Workers
1976 Campaign Comm v McCann, 433, F. Supp 540, 548 (E D Wis 1977) (prior to
adoption of Executive Order 12036 and public procedures, the court expressed skepticism
that harassment of dissident political groups had been terminated)
73 The CIA guidelines authorize undisclosed participation in organizations in the United States
"to develop associations and credentials to be utilized for purposes relating to foreign
intelligence as for example by Joining an organization to which an employee would
ordinarily be expected to belong if his cover employment were his true employment "Such
undisclosed participation is also permitted "to obtain training or education relevant to CIA
employment to obtain publications of organizations whose membership is open to the
general public to maintain or enhance the qualifications of CIA employees, and to make
it possible for them to stay abreast of developments in their fields of professional expertise
to maintain the cover of CIA personnel, programs and facilities, which are not publicly ac-
knowledged as such by the United States Government to utilize individuals on a witting
or voluntary basis who are members of an organization within the United States to develop
persons of foreign nationality as sources of contacts for purposes related to foreign
intelligence to place employees in an organization within the United States to identify
and develop persons of foreign nationality as sources or contacts for purposes related to
foreign intelligence (and) to protect the degree of CIA interest in a particular foreign
intelligence subject matter, but limited to participation in an organization that permits such
participation by government employees in their official capacities "See note 6 supra
74 Exec Order No 12036, ' 2-207 3 C FR 112, 127 (1979)
75 U S Const amend IV
76 See notes 39-42, supra and accompanying text
77 50 USCA "� 1801-1804 (West Supp 1979)
78 Id � 1801(1X1), (4), see note 40 supra. The drafters of FISA relied on the Supreme Court's
decision in Katz v United States, 389 U S 347 (1967), and intended the statute to reflect
evolving concepts of the Fourth Amendment as interpreted by the courts Thus, the
legislative history of FISA manifests Congress' intention to incorporate the Katz standard
for constitutionally protected privacy interests into the definition of electronic surveillance,
which serves to activate the statute's requirements D Rep No 604, 95th Cong , 1st Seas
4-18 (1977), reprinted in (1978) U S Code C,ong & Ad News 3904, 3905-20
79 Most circuits have recognized that the use of beepers to trace airplanes or automobiles on
public thoroughfares does not implicate the Fourth Amendment primarily because there is
no reasonable expectation of privacy in activities that are readily observable in public E g,
United States v Bruneau, 594 F 24 1190, 1197 (8th Cm )(airplane), cert denied, 100 S Ct
94 (1979), United States v Curtis, 562 F 2d 1153, 1156 (9th Cir 1977) (airplane), cert
denied, 439 U S 910 (1978), United States v Hufford, 539 F 2