THE CASE OF THE UNLIKELY SPY

...The problem with that argument, as the defense pointed out, was that in 1978, a CIA employee sold the KH-11 operations manual to a KGB agent for $3,000...

...But once the conviction was in hand, the Justice Department tried to play down the consequences for the press...

...Attorney Michael Schatzow, scoffed at the fear expressed by some journalists that the prosecution of Morison heralded a crackdown not only on leakers but on those who printed the leaks...

...Particularly dismaying has been the silence of some of the more prestigious organizations of professional journalists...

...Emphasizing that motivation is not a factor, the Department insisted that even if Morison had been inspired "to expose obvious wrongdoing in high official circles, he would be just as guilty" (emphasis added...

...This Court has repeatedly sided with the Government on questions of secrecy related to the military...

...Morison was charged with violating the Espionage Act of 1917, our basic spy statute...

...But the jury had been instructed that what really counted was whether Morison had given information marked Secret to someone who shouldn't have it...

...One day, while at work in Suitland, Morison stole three photographs taken by an American KH-11 spy satellite...

...Meese and his strict constructionists were all the more pleased when the judge also emphasized that the Government did not have to prove that Morison had any "evil purpose" or "intent to injure the United States...

...Navy has been underfinanced...

...Add Warren Burger, William Relinquish Sandra Day O'Connor, and possibly Harry Blackmun and Lewis Powell, and the first American Official Secrets Act will have been created...

...That, after all, had to do with prior restraint, and the Government always has a heavier burden justifying prepublication censorship than postpublication punishment...

...But journalists' sources can fend for themselves...

...One or more of the satellite photographs appeared in The New York Times and The Washington Post...

...Anthony Lewis was the first national columnist to call urgent attention to the case, and he has returned to it several times...

...They showed the Soviet Union's first nuclear aircraft carrier under construction at a Black Sea shipyard...

...However the Government goes about stopping leaks once and for all, it will be in charge of what the citizenry is allowed to know on all matters relating to national defense—and that term can be stretched to encompass vast amounts of information...

...It should also be noted that Justice Byron White, although he voted against prior restraint in the Pentagon Papers case, said at the time that he would support the conviction of The New York Times and The Washington Post if the Government chose to bring criminal prosecution for violating an espionage statute...

...At that point, the Government can give the reporter immunity from prosecution for violating the Espionage Act...

...The photos were published in August 1984 and then distributed by the Associated Press...

...Meese is not likely to move against journalists who accept leaks until the verdict in the Morison case has been upheld all the way...

...I doubt he has changed his mind...

...Is that what Morison did...

...If every leak to the press of classified military information led to prosecution for espionage, the entire defense establishment from [Defense Secretary Caspar] Weinberger on down would probably have been indicted by now...

...Morison is a hawk...

...Once again, the press believes that the First Amendment is meant only for journalists...

...He had left a fingerprint on one of the photos, he had never hidden the fact that he did part-time work for Jane's, and when the intelligence agents seized his typewriter, they were able to reconstruct his correspondence with Jane's from the ribbon on the machine...

...Morison has been released on $100,000 bail pending his appeal...

...Such leaks presumably would be in the interest of the Administration and so these lawbreakers would be overlooked...

...Just the kind of free press that James Madison and Thomas Jefferson had in mind...

...Morison mailed those photographs to Jane's Defence Weekly, a sister publication of Jane's Fighting Ships...

...Nor would much of the Watergate story...

...Otherwise courageous British journalists have told me that the Pentagon Papers would never have been printed in England...

...But a recent illustration of a clear cause of action under the Morison precedent was a story that appeared in The Washington Post on November 3. Bob Woodward reported that the President of the United States had approved a covert CIA operation aimed at changing the leadership of Libya...

...the judge dismissed it because of such Government misconduct as the burglarizing of the office of Ellsberg's psychiatrist...

...If the District Court's interpretation of the law is sustained on appeal, the United States will have an Official Secrets Act...

...On the side, with permission from the Navy, he was American editor—at some $5,000 a year—for Jane's Fighting Ships, a British publication that tracks military preparations around the world...

...The reporter who nonetheless remains loyal to his unnamed source can then be imprisoned for contempt of court...

...Morison wasn't hard to find...

...They say they are still considering whether a First Amendment issue is involved in the conviction of Morison...

...This was the first time in American history that anyone had been convicted of espionage for leaking classifted material to the press...

...Testifying for Morison was former CIA official Ronald S. Inlow, who for ten years had been in charge of the committee that decided what targets the KH-11 should photograph...

...Nor is the Pentagon Papers case likely to be considered relevant by this Court...

...The industry feels that the less controversial the press is, the more sympathetic the courts will be to its rights...

...The jury found him guilty, and he was sentenced to two years in prison...

...There have been strong anti-Justice Department editorials in The New York Times, Washington Post, Los Angeles Times, and Boston Globe, among others...

...The Justice Department was delighted to note that the judge had made up his mind even before the jury had been selected...

...There had been one previous attempt—the prosecution of Daniel Ellsberg and Anthony Russo in 1977 for distribution of the Pentagon Papers...

...The next stop is the Fourth Circuit Court of Appeals, which is hardly noted for its enthusiasm for the First Amendment, particularly in national-security matters...

...On the historic date of October 16, when the first leaker to the press was convicted of espionage, Morton Halperin, director of the Washington office of the American Civil Liberties Union, warned: "The conviction of Samuel Morison for allegedly passing national defense information to a news organization poses a very serious threat to the First Amendment...

...A journalist may bravely decline to name names, having sworn not to break confidentiality...

...At the trial, the Government claimed that although the Soviet Union knew what its own nuclear aircraft carrier looked like, there was a danger that the publication of the KH-11 spy satellite photographs would tell Russian intelligence a lot about how those American spy satellites work...

...In a pretrial ruling, Young said the Espionage Act was violated if Morison, "no matter how laudable his motives," gave classified material to anyone not entitled to have it...

...They would have protected their own, some officials of these groups tell me, if journalists had been among the defendants in the Morison case...

...And our side has made no changes since then in the way the KH-11 operates...

...Halperin could have strengthened his point by quoting the Justice Department's own language in one of the court papers...

...Meese, who insists that judges must Nat Hentoff, a member of The Progressive's Editorial Advisory Board, writes about music every month...

...If the Government's case against Samuel Morison is affirmed, the Justice Department will be free to indict the Bob Woodwards of the future, including Woodward himself the next time he gets a top-secret story...

...He believes the U.S...

...As The New Republic has pointed out, "The mere fact that information has been classified should not be enough to warrant prosecution...

...To this date, there has been no support—in the form of an amicus brief or even a statement—from the American Society of Newspaper Editors, the American Newspaper Publishers Association, or the Reporters' Committee on Freedom of the Press...

...Morison nodded and said, "You hit it...

...Morison is the first person in the history of the Republic convicted of a crime for such an act...

...When one of the pictures showed up in The Washington Post, the FBI and Naval Intelligence began to pursue the leaker...

...He is certain that if Americans knew how advanced the Soviets were in their lethal capacities, they would demand that Congress increase the military budget...

...The Official Secrets Act is not often invoked against the press because British reporters and editors prefer to censor themselves rather than bid their loved ones goodbye on the way to a long spell in prison...

...So far, the press has been split on the Morison case and its consequences...

...George Lardner Jr., The Washington Posfs astute and persistent reporter on intelligence stories, answered Schatzow by getting Justice Department officials to admit that "neither the Government officials who do the leaking, nor the news publications at the receiving end...

...The Justice Department, should it choose to go after the leakers first, will subpoena reporters and direct them to reveal their sources...

...Lyle Deniston, Supreme Court reporter for the Baltimore Sun and the American Lawyer, has another explanation for press reluctance to get involved: "The news industry has been taking dives lately...

...It's true, said the judge, that the Government's case "does not involve a foreign agent or the classic spy scenario...

...However, "the danger to the United States is just as great when this information is released to the press as when it is released to an agent of a foreign government...

...Morison had accomplished his purpose: He knew that once the pictures appeared in so authoritative a publication as Jane's Defence Weekly, they would be picked up in the United States...

...should consider themselves immune from prosecution under the Espionage Act" as revised by Attorney General Meese and sold to the judge and jury in Baltimore...

...Like caving in to the Government on giving up outtakes of the coverage of the hijacked TWA plane and the hostages in Beirut...

...Under that law and amendments added over the years, once the government decides certain information must be kept secret in the national interest, anyone who leaks or prints that information faces severe punishment...

...The opening to an Official Secrets Act was provided by Samuel Loving Morison, who worked as an analyst of Soviet ships at the Naval Intelligence Support Center in Suitland, Maryland...

...Even with an Official Secrets Act in operation, however, neither Weinberger nor any other powerful political appointee would be indicted for leaking...

...If a few such journalists are locked up for impressive periods of time, the leaking business—on both ends—should be effectively chilled...

...Jane's Defence Weekly hadn't been prosecuted, Schatzow observed, nor had The Washington Post or The New York Times been prosecuted for printing the photos...

...Should Morison lose a second time, and should the Supreme Court agree to review the case, his prospects are rather dim there as well...

...The Attorney General will decide who is protected by the First Amendment, unless Samuel Morison's Federal District Court conviction is overturned...

...Indeed, during an interrogation session, a Navy intelligence agent said to Morison: "Sam, I believe that the reason you turned over these photographs to Jane's was so that the American public would know what the Soviet Union is doing and therefore would support increased defense spending...

...But suddenly we are no more than two steps away from an American...

...But according to the Justice Department and Federal Judge Joseph Young, who presided over Morison's trial in Baltimore, motivations don't count...

...That case never went to the jury...

...Period...

...Woodward's story could only have been obtained from somebody on the inside, and that information was surely highly classified...

...In this country, although various Administrations have suggested that we need our own Official Secrets Act, Congress has consistently refused to give the Government so much control over the press...

...The Attorney General will decide, by his own unpublished criteria, who will be indicted, among both the leakers and those who print the leaks...

...So the press organizations prefer not to be associated with someone convicted of violating the Espionage Act...

...What they mean—according to conversations I've had—is that since nobody in the press was indicted and convicted in this case, this is only a matter of a Government employee being punished for breaking the rules of his employment...

...The clearest passage in that sometimes fuzzy law makes it a crime to communicate—directly or indirectly—information relating to the national defense to a foreign agent with the intent, or reason to believe, that the material will be used to harm the United States or help a foreign power...

...The intelligence agents who tracked him down didn't believe he was dealing with a foreign agent...

...Official Secrets Act—not by legislative enactment but by action of Attorney General Edwin Meese, who is asking the courts to create an Official Secrets Act in direct contradiction of the wishes of Congress...

...He told the jury that "zero damage" had been inflicted on the United States by what Morison had done...

...But there has been little coverage, and less analysis, on television...

...the leaking of classified information related to the national defense was a crime...

...Nor would it always be necessary for a reporter to be directly prosecuted...

...scrupulously adhere to the separation of powers and not legislate from the bench, has decided that what he defines as national security takes precedence over the Constitution and the intent of its framers...

...So what was all the fuss about...

...Presumably the physical termination of Muammar Qaddafi was not to be ruled out—even though there is a Presidential order prohibiting the CIA from getting involved in assassinations...

...The prosecutor, Assistant U.S...

...His "Who's on First" column about First Amendment issues appears four times a year, and is supported by a grant from the Evjue Foundation of Madison, Wisconsin, to The Progressive's Morris H. Rubin Memorial Fund...