June 27, 1974
Page 21447
CIA AUTHORITY TO HALT DISCLOSURE OF INTELLIGENCE SECRETS
Mr. MUSKIE. Mr. President, in the Washington Post yesterday morning, Laurence Stern wrote that Central Intelligence Agency Director William E. Colby is asking for a legislative grant of power which would strike at the heart of our first amendment guarantee of a free press.
The measure, as described by Stern, would empower the Director to seek injunctions against the news media to prevent them from publishing material he considers harmful to the protection of intelligence sources and methods.
The article went on to say that the proposal is being circulated through the bureaucracy for comment before it is introduced in the Congress.
I would hope that someone in the executive branch would have the wisdom to put a quick end to such a proposal for it represents nothing more than a prior restraint on a free press in this
country – a concept which defies the intention of those who drafted the Bill of Rights and which was specifically rejected by the Supreme Court only 3 years ago in the Pentagon Papers case.
In an initial three-part proposal which later became the first amendment, James Madison proclaimed:
The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.
Reaffirming the guarantees of the first amendment, the Supreme Court denied to the Government the right to enjoin publication of the Pentagon Papers. In the majority decision, Mr. Justice Black stated:
The amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative and Judicial Branches in the Constitution. The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people's freedoms of press, speech, religion and assembly.
In the CIA proposal, the Director would not only be empowered to seek an injunction against publication of national security information, he would be authorized to determine the ground rules for the classification of the material itself.
Surely, this is the type of reach for authority which the first amendment and the Supreme Court have sought to proscribe, and I would caution those who advocate its adoption to take another look.
I would ask that the article, "CIA Seeks New Powers To Halt Leaks," from the June 26 Washington Post, be printed in the RECORD.
There being no objection, the article was ordered to be printed in the RECORD, as follows:
CIA SEEKS NEW POWER TO HALT LEAKS
(By Laurence Stern)
Legislation that would significantly broaden the government's power to bring criminal sanctions against employees or government contractors for disclosure of intelligence secrets is being circulated within the Nixon administration.
The measure, proposed by Central Intelligence Agency Director William E. Colby, could also empower him to seek injunctions against news media to prevent them from publishing material he considers harmful to the protection of intelligence sources and methods.
Colby's draft would give the CIA director more statutory muscle to define national security secrets and punish transgressors than ever before.
Its appearance comes against a background of court battles on national security secrecy issues ranging from the Ellsberg case to the book, "CIA and the Cult of Intelligence," written by former government intelligence officers Victor Marchetti and John Marks. The book, the first to be published in the United States after pre-publication censorship by the federal government, went on sale yesterday.
Had Colby's proposal been law a year earlier the book might well have never seen the light of day and the two authors would have been subject to 10-year prison sentences and $10,000 fines.
Under existing law, however, the best the CIA was able to do was invoke the secrecy oaths signed by both men as grounds for a civil action requiring them to submit their manuscripts in advance for government clearance.
The government won the first round in the courts when the binding nature of the secrecy oaths was upheld. But Marks and Marchetti challenged the CIA's demand, on grounds of classification, for some 850 deletions in the manuscript. After adjudication of their countersuit before U.S. District Court Judge Albert V. Bryan Jr., in Alexandria, the number of deletions was reduced to 27.
Bryan required the agency to go beyond the mere assertion by Colby and four CIA deputy directors that material in the book was classified. He asked the CIA to demonstrate in each instance the basis for classification. Much of the trial was held in a closed courtroom.
Under Colby's proposed amendment to the National Security Act of 1947, the CIA director would be empowered to determine the ground rules for classification under a general grant of responsibility for protecting "intelligence sources and methods."
The Colby proposal would exempt news media from the criminal provisions of the law. But the draft language could, according to informed officials, enable the CIA director to trigger injunctive action by the Attorney General against "any person"presumably including journalists before or after an act of disclosure.
In the Pentagon Papers case, several Supreme Court justices, particularly Thurgood Marshall, cited the absence of any statutes to support the government's effort to prevent publication of the Vietnam documents. Colby's proposal would strengthen the government's hand in this respect.
Colby submitted the draft measure to the Office of Management and Budget to circulate through the bureaucracy for comment before it is introduced in Congress. In a transmittal letter to OMB Director Roy L. Ash, Colby observed that in "recent times, serious damage to our foreign intelligence effort has resulted from unauthorized disclosure of information related to intelligence sources and methods."
He did not specify what that damage was.