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Introduction
by Melvin L. Wulf
Legal Director
American Civil Liberties Union
On April 18, 1972,
Victor Marchetti became the first American
writer to be served with an official censorship order issued by a
court of the United States. The order prohibited him from "disclosing
in any manner (1) any information relating to intelligence
activities, (2) any information concerning intelligence sources and
methods, or (3) any intelligence information."
To secure the order, government lawyers had appeared in the
chambers of Judge Albert V. Bryan, Jr., of the United States District
Court for the Eastern District of Virginia, in Alexandria, on the
morning of April 18, without having notified Marchetti. The
government's papers recited that Marchetti had worked at the CIA
from 1955 to 1969, that he had signed several "secrecy agreements"
in which he had agreed not to reveal any information learned
during his employment, that after he left the CIA he had revealed
forbidden information, that he was planning to write a non-fiction
book about the agency, and that publication of the book would
"result in grave and irreparable injury to the interests of the United
States."
Among the papers presented to the judge was an affidavit
(classified "Secret") from Thomas H. Karamessines, Deputy Director
of the Central Intelligence Agency, the head of the CIA's
covert-activities branch. The affidavit said that a magazine article
and an outline of a proposed book, both written by Marchetti, had
been turned over to the CIA and that they contained information
about the CIA's secret activities. The affidavit related several of
the items and described how their disclosure would, in the CIA's
opinion, be harmful to the United States. On the basis of that
affidavit and others, including one by CIA Director Richard Helms,
Judge Bryan signed a temporary restraining order forbidding MarXX
INTRODUCTION
chetti to disclose any information about the CIA and requiring him
to submit any "manuscript, article or essay, or other writing, factual
or otherwise," to the CIA before "releasing it to any person or
corporation." It was that order which United States marshals served
upon Marchetti. The next month was consumed by a hectic and
unsuccessful effort to have the order set aside.
Marchetti asked the ACLU for assistance the day after receiving
the order, and was in New York the following day to meet his
lawyers and prepare his defense. At the first court appearance, on
Friday, April 21, we unsuccessfully urged Judge Bryan to dissolve
the temporary restraining order. He also refused to order the government
to allow Marchetti's lawyers to read the "secret" affidavit, because
none of us had security clearance. The following Monday we
were in Baltimore to arrange an appeal to the United States Court
of Appeals to argue there that the temporary restraining order
should be dissolved. The court agreed to hear argument two days
later. During the Baltimore meeting the government lawyers
announced that they had conferred security clearance upon me and
that I would be able to read the secret affidavit but could not have a
copy of it. They said they would clear the other defense lawyers
during the next few days. We were also told that any witnesses we
intended to present at trial, to be held that Friday, would also require
security clearance before we could discuss the secret affidavit
with them. That was a hell of a way to prepare for trial; we couldn't
even talk to prospective witnesses unless they were approved by the
government.
We argued the appeal before the Court of Appeals on Wednesday,
but that too was unsuccessful, and the temporary restraining
order remained in effect. Our only satisfaction was an order by the
court prohibiting both the CIA and the Department of Justice from
trying to influence our witnesses in any way.
On Friday we appeared before Judge Bryan and reluctantly
asked for a two-week postponement because it had been impossible
for us to secure witnesses who could testify that day. The need for
security clearance had made it impossible for us to discuss the
case with those witnesses who had at least tentatively agreed to
testify for the defense. But, more depressing, we had had great
Introduction xxi
difficulty finding people willing to testify at all. We had called a
few dozen prospects, largely former members of the Kennedy and
Johnson administrations who had reputations as liberals and even,
in some cases, reputations as civil-libertarians. I'm still waiting for
half of them to return my calls. Of the other half, most were simply
frightened at the idea of being identified with the case, and some,
including
a few who had themselves revealed classified information in
their published memoirs, agreed with the government that Marchetti's
pen should be immobilized. In the end, our list of witnesses
was short but notable: Professor Abram Chayes of Harvard Law
School, and former Legal Advisor to the Department of State in the
Kennedy administration; Professor Richard Falk, Milbank Professor
of International Law at Princeton; Morton Halperin, former Deputy
Assistant Secretary of Defense and staff member of the National
Security Council under Kissinger; and Professor Paul Blackstock,
an intelligence expert from the University of South Carolina.
The next two weeks were consumed by the frustrating hunt for
witnesses and by other pre-trial requirements, including examination
of Karamessines and the CIA's Security Director, who were to
be the government's chief witnesses.
The trial started and ended on May 15. Essentially, it consisted
of Karamessines repeating the contents of his secret affidavit.
As interesting as it would be to describe the day in detail, I am
forbidden to, for the public was excluded and the testimony of the
government witnesses is classified. The result, however, is public.
It was a clean sweep for the CIA, and Judge Bryan issued a permanent
injunction against Marchetti.
The results on appeal were not much better. The validity of
the injunction was broadly affirmed. The only limitation imposed
by the Court of Appeals was that only classified information could
be deleted from the book by the CIA. The litigation finally came
to an end in December 1972 when the Supreme Court refused to
hear the case. It was a great defeat for Marchetti, for his lawyersand
for the First Amendment.
American law has always recognized that injunctions against
publication-"prior restraints," in legal jargon-threaten the root
xxii I N T ROD U C T ION
and branch of democratic society. Until 1971, when the New York
Times was enjoined from printing the Pentagon Papers, the federal
government had never attempted to impose a prior restraint on
publication, and the handful of such efforts by the states were
uniformly denounced by the Supreme Court. As we learned from
the Pentagon Papers Case, however, the Nixon administration
was not going to be deterred by a mere two hundred years of history
from becoming the first administration to try to suppress publication
of a newspaper. They ultimately failed in their specific goal
of suppressing publication of a newspaper-but, for fifteen days, a
newspaper actually was restrained from publishing, the first such
restraint in American history.
The Times' resumption of publication of the Pentagon Papers
immediately after the Supreme Court decision would seem to mean
that the case ended victoriously. Although it was a victory, it was
not a sound victory, for only Justices Black and Douglas said that
injunctions against publication were constitutionally forbidden
under any circumstances. The other members of the court made
it perfectly clear that they could imagine circumstances where such
injunctions would be enforced, notwithstanding the First Amendment's
guarantee of a free press. Nixon-administration lawyers
could read the opinions as well as ACLU lawyers, and they too
saw that the decision in the Pentagon Papers Case was not a
knockout punch. So only ten months after being beaten off by the
New York Times, they were back in court trying the same thing
again with Victor Marchetti.
Nine opinions were written in the Pentagon Papers Case. Out
of all those opinions one standard emerges under which a majority
of the Justices would have allowed information to be suppressed
prior to publication: proof by the government that disclosure
would "surely result in direct, immediate and irreparable injury to
the Nation or its people." We were comfortable with that standard
because we were confident that nothing Marchetti had disclosed or
would disclose in the future would have that effect. But we were
not permitted to put the government to its proof through the
testimony of our four witnesses because Judge Bryan agreed with
the government that Marchetti's case was different from the
Introduction xxiii
Pentagon Papers Case. "We are not enjoining the press in this
case," the government lawyers said. "We are merely enforcing
a contract between Marchetti and the CIA. This is not a First
Amendment case, it's just a contract action." The contract to
which they were referring was, of course, Marchetti's secrecy agreement.
All employees of the CIA are required to sign an agreement in
which they promise not to reveal any information learned during
their employment which relates to "intelligence sources or
methods" without first securing authorization from the agency.
The standard form of the agreement includes threats of prosecution
and promises to deliver the most awful consequences upon the
slightest violation. The only trouble with the threats is that until
now they have been unenforceable. Apart from disclosure of
information classified by the Atomic Energy Commission, it is not
a crime to disclose classified information unless it is done under
circumstances which involve what is commonly understood as
espionage-spying for a foreign nation. The government tried, in
the prosecution of Daniel Ellsberg, to stretch the espionage statutes
to punish his disclosure of the Pentagon Papers, even though he
had had no intent to injure the United States, as required by the
statute. Though that prosecution was aborted under the most
dramatic circumstances, including a surreptitious attempt by President
Nixon to influence the trial judge, it is unlikely that the appeals
courts would have upheld such an expansive application of
the espionage laws-assuming that the jury would even have
brought in a guilty verdict.
In any case, being doubtful about how far the threat of
prosecution under a dubious statute would deter Marchetti from
publicly criticizing the CIA and inevitably disclosing some of its
practices, the CIA fell upon the contract theory as a device for
trying to suppress his book before it was put into print. The
theory struck a harmonious note with the federal judges who
heard the case, and proved more successful than the government
probably ever dared to hope and certainly more than we had ever
expected. But it cheapens the First Amendment to say that an
agreement by an employee of the United States not to reveal some
xxiv IN T ROD U C T ION
government activity is the same as an agreement to deliver a
hundred bales of cotton. It ignores the compelling democratic
principle that the public has a right to be well informed about its
government's actions.
Of course, some will be heard to say, "But these are secrets,"
and indeed much of the information you will read in this book has
been considered to be secret. But "secrets" have been revealed
before-there were literally thousands of them in the Pentagon
Papers. Every high government official who writes his memoirs
after leaving office reveals "secrets" he learned while in government
service, and most had signed secrecy agreements too. "Secrets"
are regularly leaked to the press by government officers, sometimes
to serve official policy, sometimes only to serve a man's own
ambitions. In fact, disclosure of so-called secrets-even CIA
secrets-has a long and honorable history in our country, and the
practice has proved to be valuable because it provides the public
with important information that it must have in order to pass
judgment on its elected officials.
Furthermore, disclosure of "secret" information is rarely harmful
because the decision inside government to classify information is
notoriously frivolous. Experts have estimated that up to 99 percent
of the millions of documents currently classified ought not be
classified at all. But not only is disclosure of "secret" information
generally harmless, it is a tonic that improves our nation's health.
Government officers cried that disclosure of the Pentagon Papers
would put the nation's security in immediate jeopardy. When they
were finally published in their entirety, the only damage was to
the reputation of officials in the Kennedy and Johnson administrations
who were shown to have deceived the nation about the war
in Vietnam.
When you read this book, you will notice that, unlike any
other book previously published in the United States, this one
contains blanks. That is the remarkable effect of the government's
success. You will also notice that the book has two authors, Victor
Marchetti and John Marks. That is another remarkable effect of
the government's success. After being enjoined, defeated in his
attempts to win relief in the appellate courts, virtually ignored by
Introduction • xxv
the press, shunned by his former colleagues at the CIA, unable
even to discuss the progress of his work with his editor at Knopf
(because the very purpose of the injunction was to forbid the
publisher to see the manuscript before the CIA had had the
opportunity to censor it), there was serious question whether
Marchetti would be able to write the book at all. His discouragement
was profound and his bitterness sharp. If he had not written
the book, the government's success would have been complete, for
that was its real objective. Luckily, Marchetti and Marks came
together, and with a shared perspective on the evils of clandestine
activities, they were able to do together what the government hoped
would not be done at all.
When the manuscript was completed at the end of August 1973,
it was delivered to the CIA. Thirty days later, the time allowed
by the injunction, we received a letter from the CIA which
designated 339 portions of the book that were to be deleted. Some
of the deletions were single words, some were several lines, some
were portions of organizational charts, and many were whole
pages. In all, 15 to 20 percent of the manuscript was ordered
deleted. I won't soon forget that September evening when
Marchetti, Marks, and I sat in the ACLU office for several hours
literally cutting out the deleted parts of the manuscript so that we
could deliver the remains to Knopf. It was the Devil's work we
did that day.
We filed suit in October, together with Knopf, challenging the
CIA's censorship. By the time we went to trial on February 28,
the agency had reduced the number of deletions from 339 to 168.
Withdrawal of half their original objections should not be taken as
a sign of the CIA's generosity. On the contrary, it was the result
of our insistent demands over a period of four months, and the
agency's recognition that we would go to the mat over the very
last censored word. The authors gave up nothing, and rejected
several invitations to re-write parts of the book so that it would be
satisfactory to the CIA.
There were three issues to be decided at the trial: did the censored
portions of the book consist of classified information? Was
that information learned by the authors during their government
employment? And was any of it in the public domain?
xxvi • IN T ROD U C T ION
After a two-and-a-half day trial, including testimony by the five
highest-ranking officials of the CIA, Judge Bryan decided the case
on March 29. It was a major victory for the authors and the publisher.
Bryan held that the agency had failed, with a few exceptions,
to prove that the deleted information was classified.
The decision was probably more surprising to the CIA. Accustomed
as they have become to having their way, it is unlikely to
have occurred to them that a mere judge of the United States
would contradict their declarations about classified information,
for it was the government's theory throughout the case that material
was classified if high-ranking officials said it was classified. Our
view, presented through the expert testimony of Morton Halperin,
was that concrete proof of classification was required. In the absence
of documents declaring specific information to be classified,
or testimony by the employee who had in fact classified specific
information, Judge Bryan flatly rejected mere assertions by ranking
CIA officers that such information was classified.
Of the 168 disputed items, he found only 27 which he could
say were classified. On the other hand, he found that only seven of
the 168 had been learned by Marchetti and Marks outside their
government employment, and that none of the information was in
the public domain.
The decision is obviously important. It allows virtually the entire
book to be published (though the present edition still lacks the
deleted sections cleared by Judge Bryan, since he postponed enforcement
of his decision to allow the government its right to
appeal); it desanctifies the CIA; and it discards the magical
authority that has always accompanied government incantation of
"national security." Hopefully, the higher courts will agree.
There will necessarily be differences of opinion on the subject of
the disclosure of secret information. The reader of this book can
decide whether the release of the information it contains serves the
public's interest or injures the nation's security. For myself, I have
no doubts. Both individual citizens and the nation as a whole will
be far better off for the book's having been published. The only
injury inflicted in the course of the struggle to publish the book
is the damage sustained by the First Amendment.
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