SNEPP: THE CASE FOR JUDICIAL RESTRAINT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80B01554R003300130074-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 3
• Document Creation Date: December 16, 2016
• Document Release Date: February 22, 2005
• Sequence Number: 74
• Publication Date: May 1, 1980
• Content Type: MAGAZINE

Approved FoRelease 2005/03/16 : CIA-RDP80B015503300130074-5
Tape 14
Side A, 1/8 - 1/4
a jug 'No
NOTE FOR: Gary
I made some semi-commitments to Mr. John J.D. Owen of Amherst, a classmate
and friend.2 that I'd see him if he came to Washington and called; and to
President Ed Mortola of Pace University who is on some Presidential Commission
for Education.
Approved For Release 2005/03/16 : CIA-RDP80BO1554R003300130074-5
 Approved For Release 2005/03/16 : CIA-RDP80B01554R003300130074-5
TICLE'P7~.REj3 FIRST PRI"1CPPIES
OX PAGE CENTER for NATIONAL SECURITY ITY STUDIES
M Y 1980
Snepp: The Case cr Judi dal alga n T' Guasl
by Anthony Lewis
The Warren Court was often chided by conservatives
for failing to exercise self-restraint-for reaching out to
decide issues instead of leaving them, at least in the first
instance, to the political branches of government. Given the
great power of the Supreme Court, it should be wary of
overreaching. But the caution should apply whether a novel
decision is being made in the interests of the individual or
of the state..
In the case of Frank Snepp, the Court reached out for
novel doctrine that greatly enlarges the state's power to
suppress what it defines as official secrets. The Court
acted without explicit congressional guidelines, in 'an area
where Congress has done much legislating, and it acted in
a summary manner that violated its own traditions. The
result is to give this country the first elements of an
Official Secrets Act: the statute that in Britain has been
condemned by repeated studies as an unjustified obstacle
to informed democratic control of government.
Snepp was,a Central Intelligence Agency man in
Vietnam. After leaving the agency in 1976 he wrote a book,
Decent Interval, that criticized the performance of
Secretary of State Kissinger, Ambassador Graham Martin,
and CIA officials in the final days-criticized them in
particular for leaving behind, when the Americans pulled
out in 1975, many Vietnamese who had worked for the CIA
and other U.S. agencies,
Like all CIA employees, Snepp on joining the Agency
had signed an agreement not to publish anything about it
without its prior approval. In the earlier case of Victor
Marchetti, the U.S. Court of Appeals for the Fourth Circuit
had decided (and the Supreme Court declined to review the
decision) that that promise was a legally-binding contract,
enforceable by injunction. But Decent Interval appeared
before officials knew about it: too late for an injunction
against publication. The government instead sought to
penalize Snepp financially, to discourage others from
following his example.
Damages are the usual remedy for breach of contract;
but in suing, the Government sought something more: _
a "constructive trust" that would take all of Snepp's
profits from the book and give them to the Government.
It won that from the trial judge, but the Fourth Circuit
said the proper remedy was punitive damages, fixed by a
jury. Snepp asked the Supreme Court'to review the whole
theory that his promise was an enforceable "contract."
Point cf
View
The Government opposed review, saying that it was content
with the Fourth Circuit decision. But if the Supreme
Court heard the case, it said, it would argue for the
constructive trust remedy. _
The Supreme Court took the case and decided it
summarily, without hearing argument. A 6-3 majority, in
an unsigned opinion, found that Snepp had violated both;
his "contract" and a "trust inherent in his position." The
Court imposed a constructive trust on Snepp, requiring
him "to disgorge the benefits of his faithlessness."
The manner of the decision was extraordinary. Because
the government had only conditionally raised the question
of the remedy, saying it was satisfied with what it had won'
in the Court of Appeals, Snepp's lawyers had not briefed
the legal issue of constructive trusts-much less had an
opportunity to argue it orally. Justice Stevens, in the
dissenting opinion, said he had been able to find no
precedent for the Supreme Court thus reaching out to decide
a question without giving counsel some chance to discuss
it.
The matter-the substance of what was decided-was
even more remarkable. For the Court did not stop at
holding that CIA employees who sign formal secrecy
undertakings are legally bound by them. It.did not stop at
affirming that those persons may be enjoined from writing
or speaking about the agency's secret work, as Victor
Marchetti was, or may be financially punished for
publishing without prior clearance. The Court raised the
possibility that those draconian devices may be applied to
anyone in government who has access to significant
classified material.
"Quite apart from the plain language of the [secrecy]
agreement," the Supreme Court said, "the nature of Snepp's
duties and his conceded access to confidential sources and
materials could establish a trust relationship." Elsewhere
the opinion implied that Snepp's position not only could but
did create "a fiduciary obligation" not to say anything
without his superiors' approval.
Thousands of people in the Defense and State
Departments and elsewhere have access to material as secret
as that known to Frank Snepp, who was not a high CIA
official. Potentially, therefore, any one of those persons can
be enjoined from speaking about abuses in his agency or
deprived of his royalties for publishing without approval
a book critical of agency policy. In effect the Court has
given the government the outlines of a broad new secrecy
law, which future judicial decisions can fill in,
Approved For Release 2005/03/16: CIA-RDP80BO1554ROO33PAI-3110 A-5-.
 The Experience ce
Breast Cancer
The articles on breast can-
cer are a tribute to enlightened
journalism ("Reducing the
Trauma of Breast Cancer" by
Maya Pines and "The Best
Years of My Life" by Betty
Rollin, April 6).
I recently underwent a dou-
ble mastectomy, and I find the
sentiments expressed by the
authors very honest and thor-
ough. Thank you for helping
me and, I imagine, countless
others. It Is a difficult ordeal
to go through, and we need
support systems from many-
most of all the physicians In-
volved.
PEM DONEGAN WORMER
Farmington, Conn.
Maya Pines's otherwise
good article contained a few
factual errors. A modified
radical mastectomy is not the
same as a total mastectomy,
nor was the modified radical
compared with other surgery
in the National Surgical Adju-
vant breast study. Actually,
the modified radical mastec-
tomy was recommended as
the surgical procedure of
choice by the National Cancer
Institute consensus committee
even though there has never
been a randomized trial to
compare it directly with other
types of surgery.
Random trials are not al-
ways necessary to demon-
strate the effectiveness of cer-
tain treatments. Evidence ac-
cumulating from many cen-
ters all over the world shows
that the procedure of local ex-
cision and radiation therapy
yields results just as good as
mastectomy despite the non-
random nature of most of
these studies. Women should
be made aware that this option
of treatment exists, and have
E_ E
the opportunity to discusss it
with a qualified radiation
therapist prior to surgery.
LEONARD R. PROSNITZ, M.D.
Professor of Therapeutic
Radiology
School of Medicine
Yale University
New Haven
The two-step procedure will
enrich surgeons, anesthesiolo-
gists and hospitals, but at
what benefit to patients? I find
It hard to believe that Dr. Kel-
ley really distrusts her pa-
thologists, or that the exten-
sive testing called for is cost-
effective, either. The fact is
that an abundant body of lit-
erature exists demonstrating
that pathologists are quite ac-
curate, and that, for example,
scanning is overutilized in the
majority of early cases.
JOSEPH E. BARRIE, M.D.
Concord, Mass.
I wish to add one point about
the psychological benefit to
the patient of the two-step pro-
cess. I had a biopsy and "Itim-
pectomy" in the ambulatory-
surgery program at Norwalk
Hospital. When I awoke, my
surgeon told me the biopsy
showed a malignancy. He said
I should get dressed and go
home and come to his office on
Monday. At that point, I
thought my only options were
just how radical a mastectomy
I would undergo. To my aston-
ishment and relief, the sur-
geon recommended radiation
- painless and, we now be-
lieve, successful in my case.
The- days between the sur-
geon's personal diagnosis and
the biopsy were infinitely
more difficult for me than the
days between the biopsy and
the appointment to discuss the
options. The earlier period
found my husband and me
drawn together in enormous
tension.
We went through all of our
fears before the biopsy. But
once we actually heard the
dreaded news, we found we
could cope. Divorcing some of
the emotional strain from the
necessary physical ones is
truly a blessing for the patient
and her family.
PHYLLIS S. McGRATH
Weston, Conn.
Happy fifth anniversary,
Betty Rollin! How wonderful it
is that this person is really
alive and really happy to be
alive; how sad, that it took
such a close call before she
was able to see and under-
stand what was going on in her
life and to make some rather
drastic changes for herself.
A paradox indeed that Betty
Rollin had to have a part of the
whole taken away before she
became whole. I sincerely
hope other people can learn
from her painful experience.
Many thanks to Miss Rollin for
sharing so openly her own per-
sonal experience. Obviously,
she gained much more from
her mastectomy than she lost.
We all can learn a lesson in liv-
ing from her. I hope she sees
and feels many more anniver-
saries.
BARBARA-ANN KLIE
Rochester
Accountability of
The C.I.A.
Tad Szulc argues that leaks
concerning C.I.A. covert
operations from Capitol Hill
sources are no problem and as-
serts that Director of Central
Intelligence Stansfield Turner
"has admitted that he knows
of no examples of such leaks
from Capitol Hill sources"
("Putting Back the Bite in the
C.I.A.," April 6).
If Admiral Turner's admis-
sion was correct as of the time
it was made, he now needs to
look no farther than Mr.
Szulc's own article to find a
leak on a sensitive C.I.A. mat-
ter from Capitol Hill sources.
The article describes a meet-
ing in S-907, "the most secure
room in all of Congress," to re-
view C.I.A. plans for covert,
paramilitary operations In Af-
ghanistan. In view of the de-
tailed description of the dis-
cussion and decisions made at
a secret meeting attended only
`..f megtbe, of the Senate,
C.I.A. representatives and the
staff directors of the Select
Committee, how can it be
maintained that there are no
leaks from Senate sources on
matters of
As the wife of a C.I.A. opera-
tive, I find the prospect of a
less accountable C.I.A. threat-
ening indeed.
I'm also puzzled by the
claim of some that had the
C.I.A. not been stripped of Its
powers, we would not be in the
mess we're in today, espe-
cially the mess of Iran.
How quickly we seem to for-
get that the C.I.A. master-
minded the overthrow of Mos-
sadegh in 1953, putting, the
Shah in power. The excesses
and the unaccountability of the
agency in Iran, and in many
other now anti-American
countries, have made the
mess.
It is not a question of what
might have been good for Iran,
or what is right or wrong. It Is
a question of interference. A
backlash Is inevitable. The
greater the power of the
C.I.A., the more Irans we can
expect. Indeed, El Salvador
and Nicaragua sta
Welcoming
Vii etnam Refugees
The drama of collective vio-
lence described in "Vietnam
Fallout in a Texas Town" (by
Ross Milloy, April 6) is typical
of eruptions between segre-
gated communities without
bonds of language, memory or
religion to bind them. But
Seadrift is not the whole story.
As a sponsor and director of
the Indochinese Refugee Spon-
sorship Development Project
of the Dutchess Interfaith
Council, I have seen Vietnam-
ese refugees being welcomed
in Dutchess and Ulster Coun-
ties. My own committee fur-
nished a complete four-room
apartment without any cash
outlay except for window
shades. Nor does responsibil-
ity end with material dona-
tions. Sponsors show refugees
how to shop and cope, get them
jobs and apartments, drive
them to medical appointments
and language lessons, and
often tutor them themselves.
Many feel ( ' do) that we
have benefitd09ore than they
by these relationships.
HELEN FEIN
Director, Indochinese Refugee
Sponsorship Development
Project
Poughkeepsie, N.Y.
Preserving and
Sharing Art
I want to thank Mary Vespa
for her article "Rare Finds in
a Museum" (April 20). Al-
though the article dealt only
with the plight of photographic
collections, its tale of involun-
tary neglect and deterioration
can be generalized to three-di-
mensional objects, paintings
and prints in most American
museums of anthropology.
Various ideas have been ad-
vanced for rekindling interest
in their preservation. At the
Peabody Museum, we are ex-
perimenting with the coun-
try's first large-scale collec-
tion-sharing program. During
the next three years, the Pea-
body will make available to
nine art, history, science and
general museums some 1,200
artifacts, photos, paintings,
prints and documents for pub-
lic exhibition.
FRAN SILVERMAN
Director, Collection-Sharing
Program
Peabody Musem
Harvard University
Cambridge, Mass. ^
The Times welcomes letters from
readers. Letters for publication
should include the writer's name,
address and daytime telephone
number. Letters should be ad-
dressed to The Editor, Magazine,
The New York Times, 229 West 43d
Street, New York, N. Y. 10036. Be-
cause of the large volume of mass
received, we regret that we are un-
able to acknowledge or to return