WHO'S ON FIRST?
Hentoff, Nat
who's on first: Nat Hentojf How We Got an Official Secrets Act On October 19, 1988, few newspapers—and none of the television networks—carried the news that for the first time in American...
...And the .specifications of that manual had not been changed...
...However, a second section of the Espionage Act was seized on by the Federal prosecutors and the courts...
...As The New York Times observed in an editorial the day after Morison discovered he had to serve out the two-year sentence he began last June, "The power to criminalize leaks becomes a loaded weapon against democracy...
...No one will ever know, until a similar case does go all the way up...
...Their brief may have had something to do with the fact that two of the three judges on the appellate panel expressed concern about potential damage to the First Amendment if Morison were convicted...
...The Justice Department has made clear that it will not be at all squeamish in going after reporters, editors, and publishers, depending on the "seriousness" of the case...
...One of the lawyers who had organized the superb brief to the Fourth Circuit told me why Morison had marched alone to the High Court: "We didn't want the Supreme Court to take the case...
...Would the press have abandoned us then...
...However, Justice Harry Blackmun, who was on the side of the Government in the Pentagon Papers case, wrote that "the First Amendment, after all, is only part of an entire Constitution...
...So now we have finally had one imposed on us by the courts...
...Indeed, it would be his obligation to prosecute...
...Not surprisingly, once Morison lost at the Fourth Circuit, much of the press did little, if any, reporting on Morison and his case as it moved toward the Supreme Court...
...What would have happened if the Mor-ison case had been heard by the Supreme Court...
...The prosecutor said that even if Morison had been inspired "to expose obvious wrongdoing in high official circles, he would be just as guilty...
...This did not come about because Congress passed a new law...
...Again and again I was told by journalists that "this guy isn't one of us...
...And since it was not overturned by the Supreme Court, it has impact...
...Moreover, Congress has always turned down attempts by the Executive Branch to enact an Official Secrets Act...
...Morison's attorneys and a friend-of-the-court brief filed by most of the major newspapers and broadcast networks had vainly tried to show the court an even clearer path to a different verdict...
...But according to a number of constitutional lawyers, the decision can have a much broader effect...
...Navy and a part-time correspondent for the British journal Jane's Fighting Ships, a companion publication of the also highly regarded Jane's Defence Weekly...
...Finally, after much coaching and organizing, the press got itself together to join in filing a splendid brief in Morison's behalf before the Fourth Circuit...
...Other jurisdictions will have to look at it if another such case comes before them...
...There was no longer much of a "peg" for a story...
...He's not a reporter, so how does his case concern the press...
...Reporters and editors, as demonstrated during The Progressive's battle with the Government in 1979, are not nearly as well informed about the full range of the First Amendment as they are about local sewer contracts...
...Nonetheless, Mark Lynch, Samuel Morison's lawyer, doesn't understand the reasoning behind that decision by the organized press...
...But the only reasonably certain votes to overturn Morison's conviction would have been those of Justices William Brennan and Thurgood Marshall...
...But the outcome of the case is still not as damaging as if the Supreme Court had affirmed Morison's conviction...
...That provision has nothing to do with Morison, of course: The Soviet Union did not have to be told it was building a nuclear-powered aircraft carrier...
...The British experience demonstrates the kind of slippery slope an Official Secrets Act creates...
...who's on first: Nat Hentojf How We Got an Official Secrets Act On October 19, 1988, few newspapers—and none of the television networks—carried the news that for the first time in American history, the press and employees of the Federal Government were subject to an Official Secrets Act...
...spy-satellite photography works...
...Finally, it dawned on some journalists that the press was, indeed, involved because Morison was being punished for leaking to the press...
...As the Justice Department emphasized during Mori-son's trial—and the judge agreed—whistle-blowers can now be prosecuted under espionage law for leaking information to the press...
...Judges have usually recognized that official censorship was precisely what the First Amendment was intended to prevent...
...The swing vote, if that's what it turned out to be, would be that of Anthony Kennedy, who has mainly voted, so far, with those on the Court who restrict rather than expand individual liberties...
...Morison was charged under the Espionage Act of 1917, which makes it a crime to communicate to a foreign agent, directly or indirectly, information relating to the national defense with the intent, or reason to believe, that the material will be used to harm the United States or help a foreign power...
...The problem with that argument is that back in 1978, the KGB had bought a copy of the official manual of the satellite from a rogue CIA agent who is now in prison...
...That's something the press should have learned by now...
...As a convinced hawk, he also wanted to alert the American public to what he saw as a need for more money for the Navy...
...Ignoring the wishes of Congress, the trial judge and the appellate court have, in fact, legislated from the bench this sweeping authorization of prior restraint...
...It's likely to have significant influence on courts around the country," says Burt Neubourne, a law professor at New York University and former legal director of the American Civil Liberties Union...
...News & World Report, The Wall Street Journal, the New York Daily News, the Boston Globe, National Public Radio, and the Newspaper Guild, among others...
...In the United States, however, the courts have been exceedingly reluctant—until now—to permit prior restraint by Government...
...The pictures were leaked not to an enemy agent but to a publication in the land of a friendly power...
...It is all but certain that Chief Justice William Rehnquist would vote to affirm Morison's conviction, as would Justices Antonin Scalia, Byron White, and Sandra Day O'Connor...
...What did Morison in was the phrase in the 1917 Act that criminalizes the turning over of classified information "to any person not entitled to receive it...
...Justice John Paul Stevens is, as always, unpredictable...
...It was the result of a decision by the U.S...
...It is difficult, said the Fourth Circuit, "to conceive of any language more definite and clear...
...How did it happen, this evisceration of the First Amendment, this historic event of which the vast majority of Americans-including many reporters, editors, and publishers—are unaware...
...Moreover, anyone publishing leaks based on any of the millions of classified documents relating to national security can be prosecuted...
...And will be...
...British reporters and editors face fiercely intimidating prison sentences if they print information the Government does not want them to print, and the Thatcher government has proposed "reforms" that will make the law still tighter...
...leaker or a news organization that embarrasses the Government...
...There have been exceptions, notably when The Progressive was prevented for more than six months in 1979 from publishing Howard Morland's article, "The H-Bomb Secret...
...It criminalizes "the willful communication" of information relating to the national defense "to any person not entitled to receive it" if the person turning over the information has reason to believe it would injure the United States or help a foreign power...
...And in 1950, when the Espionage Act was amended as part of the Internal Security Act, Senator Pat McCarran, who usually viewed the First Amendment with considerable suspicion, put into the law specific language forbidding any limit or infringement on freedom of the press...
...We figured we'd lose if they did, and that would make the case a national precedent...
...He doesn't say how many, but obviously they were short of the four needed to grant a review...
...When the photographs were published here in The New York Times and The Washington Post, among other newspapers, the FBI had little trouble figuring out where they had come from...
...Furthermore, Roland S. Inlow, who had long been the CIA's expert on spy satellites, testified at Morison's trial that the leaking of the photographs had done "zero damage" to the security of the United States...
...Accordingly, Morison leaked to Jane's several American spy-satellite photographs—each stamped Secret—showing the building of the Soviet Union's first nuclear-powered aircraft carrier...
...See "Her Majesty's Censors," by Mel Friedman, February issue...
...In 1917, Senator Henry Cabot Lodge, hardly a libertarian, argued strenuously against curbing the press by means of national-security legislation...
...That lawyer is aware that the influence of the Fourth Circuit's decision may extend beyond the boundaries of that circuit...
...There was no further friend-of-the-court brief by them...
...But then he adds: "There's also a matter of principle involved...
...The Government argued that Morison had injured the United States because Soviet intelligence, studying the photographs, would learn much about how U.S...
...Evenhanded prosecution would put much of official Washington in prison...
...The other circuits are not bound by what the Fourth Circuit does, but this is the first decision about whether the Espionage Act covers leaking classified material to the press...
...He has been on both sides in First Amendment cases...
...Such prosecution therefore becomes a club for selective use against a Nat Hentojf is the author of "The First Freedom" and many other books...
...If we had won at the Fourth Circuit," Lynch told me, "the Government would surely have appealed...
...But the Fourth Circuit affirmed his conviction anyway, and when Morison took his case to the Supreme Court, he and his lawyer discovered that his friends in the press had vanished...
...Samuel Loring Morison had been an intelligence analyst for the U.S...
...The legislative history of the 1917 Espionage Act, from the floor debate preceding its passage to its amending in 1950, demonstrates with powerful clarity that there was no intention to cover leaking to the press...
...Supreme Court that it would not review the espionage conviction of Samuel Loring Morison, the first American to be imprisoned for disclosing Government information to the press...
...Instead, it danced the hesitation waltz in a case of crucial First Amendment importance to everybody, not just journalists...
...At first, after Morison's conviction at trial, most of the press was reluctant to support his appeal...
...Floyd Abrams, one of the nation's most effective First Amendment lawyers, says that he understands the reason for the strategic retreat on the part of the press...
...If you think it's an important case—and obviously the press finally did—then you fight it all the way...
...That, said the trial judge and the Fourth Circuit Court of Appeals, means not only spies but also the press...
...Once a government has the power to exercise prior restraint on publication, it can keep adding to its list of information that cannot be disclosed—especially in the vast, vague area of national security...
...He may have become more devoted to the First Amendment over the years, as he has changed in other respects...
...Strictly speaking, the appellate decision left standing by the Supreme Court applies only to the Fourth Circuit (Maryland, North Carolina, South Carolina, Virginia, and West Virginia...
...There were no recorded dissents on the Supreme Court, but one of the Justices tells me there were dissents...
...Morison wanted to get a full-time job with those publications...
...This has been the history of the besieged British press since an Official Secrets Act went into effect there in 1911...
...His column on First Amendment issues appears four times a year...
...For instance," Neubourne adds, "if a case like this came up in Kansas, the United States Attorney there would have to explain why he did not go ahead and prosecute on the basis of this Fourth Circuit decision...
...The name of the case is United States of America v. Samuel Loring Morison, and the Government's victory means that it now has the power to prosecute anyone in its service who leaks information relating to "national security" that the Government has decreed to be secret—any information, including whistleblowing on Government misconduct...
...In the media—and in such organizations as the Reporters Committee for Freedom of the Press, the American Society of Newspaper Editors, and the American Newspaper Publishers Association—the consensus was that Morison was just a Government employee who had broken the rules and should be punished...
...Except the shrinking of the First Amendment...
...Among the signers were the organizations mentioned above as well as The Washington Post, CBS, NBC, ABC, Time, Newsweek, U.S...
...But until the Morison case, there has not been a prior restraint of such enormous scope as is now possible...
Vol. 53 • March 1989 • No. 3
