May 9, 1974
Page 14004
REVISING THE ESPIONAGE ACT
Mr. MUSKIE. Mr. President, the Subcommittee on Criminal Laws and Procedures of the Committee on the Judiciary is engaged in the arduous and enormously important task of considering proposals to recodify all Federal criminal statutes. In that process it has been hearing testimony on the laws dealing with espionage and the proposals in S. 1 and S. 1400 to revise those laws.
This morning the subcommittee heard the views of a highly qualified witness, former Air Force Officer William G. Florence, for more than 40 years a military and civilian expert on security matters. Mr. Florence, whose advice on classification practices and Government secrecy policy, has been invaluable to many Members of Congress, strongly argued that the provisions of S. 1400 dealing with espionage and its punishment would endanger constitutional rights of free speech and free press "without enhancing national defense one bit. As I observed about the same proposals in a speech over a year ago," Mr. Florence testified, "the espionage sections of S. 1400 constitute a real threat to freedom in America," because they would drop from the law the essential concept that disclosure of information dealing with the national defense be punishable only when such disclosure is committed with the intent to injure the United States or bring advantage to a foreign nation.
Mr. Florence's testimony, including the facts he cited to dispute the administration's contention that classification reforms have so improved the secrecy system as to justify making criminal any unauthorized disclosure of classified information, should be read by all those who must consider the wisdom of revising the espionage laws. His full testimony will eventually be printed by the Subcommittee on Criminal Laws and Procedures, but in the meantime, I ask unanimous consent that a summary of his prepared statement before the subcommittee and a particularly interesting extract from his full prepared statement be printed in the RECORD.
There being no objection, the statement was ordered to be printed in the RECORD, as follows:
SUMMARY OF STATEMENT BY WILLIAM G. FLORENCE
Mr. Chairman, I deeply appreciate the invitation to testify on proposals in S. 1 and S. 1400 to revise sections of the Federal Criminal Code involving espionage and related offenses. This is a continuation of my testimony May 23, 1972 on proposals that the National Commission on Reform of Federal Criminal Laws had previously submitted to Congress for revising the espionage statutes.
A statement of my qualifications is in Part III, Subpart D, of the Committee's report of hearings, with my earlier testimony, page 3047. 1 would update my qualifications, which have now increased to 46 years of military and civilian experience involving national defense information.
I served for 19 months as consultant on Government security policy to defense counsel in the Ellsberg-Russo espionage case. This included consultation in court during the pre-trial process and during the four month trial, until it ended May 11, 1973.
At present, among other pursuits, I am consultant on Government secrecy policy and practices to the recently established Project for an Open Society, with offices currently in New York City. It exists to help curb expansion of state power in the name of national security.
I am also consultant to the National Committee on Government Secrecy, which is located here in Washington.
Mr. Chairman, I will summarize the major points in my comprehensive statement at this time. I ask that the statement be included in the record following these comments.
First, it is important to note that the bill designated as S. 1 originated as a product of this Committee. The bill designated as S. 1400 was drafted by the Department of Justice. Both bills are based on recommendations made by the National Commission on Reform of Federal Criminal Laws.
The analysis I made in 1972 of the Commission's report showed that the proposed revision of the espionage statutes would seriously impact on the First Amendment rights of free speech and a free press, without enhancing national defense one bit. Most of the faulty security concepts in the Commission's report were excluded from the espionage sections of S. 1. But the espionage sections of S. 1400 constitute a real threat to freedom in America.
Mr. Chairman, I have studied the memorandum that the Department of Justice submitted to the Committee in May 1973 in support of sections 1121-1126 of S. 1400. That memorandum and the testimony of the Department's representative, which are in Part VI of the report of hearings, shows the false philosophy of secrecy that has prevailed for many years in the Executive branch.
Disclosures stemming from the Ellsberg-Russo case and the Watergate burglary have revealed this particular administration's practice of honoring its secrets more than the rights of citizens to free speech. That practice would be made lawful by S. 1400.
I now turn to chapter 11 of S. 1400. Problem areas will be identified, and solutions suggested in general. Specific changes and detailed reasons for each one are in the full statement.
The matter of greatest concern is the proposal to eliminate the element of injury to the nation that existing law in 18 USC 793 (d) and (e) require for alleging that a disclosure of information relating to the national defense was a crime. This would have the effect of eliminating our First Amendment right of free speech.
The Department of Justice indicates that the injury factor is not now an essential element of law. But nothing could be clearer than 18 USC 793 (d) and (e) in showing that for a person to be prosecuted for having disclosed information relating to the national defense, he must have had reason to believe that it could be used to the injury of the United States or to the advantage of any foreign nation.
It is true that 18 USC 793 (d) and (e) could be read as if the injury factor did not apply to the communication of physical items containing information relating to the national defense.
However, it would make no sense to allow a citizen to read information in a document to another citizen but allege a criminal act if the same information was communicated in documentary form.
The Ellsberg-Russo case is the only one in which the Executive branch ever prosecuted anyone for communicating documents allegedly relating to the national defense, in violation of 18 USC 793 (d) and (e), without claiming existence of the injury factor.
But the day before the trial began, the judge stated his views regarding the law as it applied to documents. This was done in court, January 16, 1973. Here are excerpts from the record, beginning on page 8218 of the transcript:
"In stating what I feel the tentative issues are, I have kept in mind what I feel is the congressional purpose behind this statute. And that is to protect information and documents that belong to the Government, which have been kept confidential by the Government, in prevention of injury to the nation.
(Emphasis added.)
"Are the documents the type that require protection in the interest of the national defense, in that their disclosure could adversely affect or injure this nation or be to the advantage of any foreign nation?"
Mr. Chairman, the phrase "information relating to the national defense" applies to a considerable mass of information known to the people in this country. Communication between two or more citizens of information relating to the national defense is naturally part of the life of this nation. The only possible basis for alleging criminality in communicating such information is the existing factor of injury to the nation.
The concept that citizens should be punished for disclosing information to one another without any proof of injury to the country is reflected in sections 1122, 1123 and 1124 of S. 1400.
Section 1124 would be especially repressive regarding disclosures of what is called "classified information." People would be criminalized solely because somebody put a classification marking of Confidential, Secret or Top Secret on an item of information. A person accused of revealing the information would be prohibited from challenging the validity of the classification.
Mr. Chairman, the Department of Justice suggestion that a security classification marking would identify information as affecting the national defense is truly a hoax. The designation of an item of information as being classified is strictly a matter of mind. Anyone can say that some information is classified Secret at a given moment, and then change his mind at any time thereafter and reveal the information without restriction. But any document containing the information normally will keep the original classification marking, even after complete disclosure of the information.
My full statement shows how Department of Defense regulations authorize a security classification for practically anything, including privately owned information.
Also, my statement documents the refusal of the Department of Defense, at this moment, to cancel the classification marking on documents which were introduced as evidence in the Ellsberg-Russo trial, and became public records.
This sort of bureaucratic obsession with secrecy practices has made a security classification of Confidential, Secret or Top Secret the most disbelieved and least respected symbol of Executive branch authentication today, but this administration is still pushing for the idea of punishment by classification label. In a speech just a few days ago, April 30, 1974, the Assistant Attorney General, Office of Legal Counsel, referred to the purpose of prohibiting a challenge of the validity of an assigned security classification as being "essential to effective operation of our information security system."
Another problem area is the definition of terms. The definition of a word or phrase can extend the reach of law far beyond that which a sentence in context might indicate to an unsuspecting reader. It is enough of a burden in life that ignorance of a clearly stated criminal law is no excuse for violating it, without being threatened by a law that requires deciphering a cloudy definition or a whole series of definitions.
Among other questionable definitions, S. 1400 would attempt to define the phrase "relating to the national defense" as including some specified fields of information. That really would kill freedom of speech. It is injury to the nation that should concern us, not types of information.
The Supreme Court ruling in what is known as the Gorin case prohibited arbitrary prosecutions that would result from a pre-trial designation of a particular item of information as relating to the national defense.
Mr. Chairman, the only logical action which I could suggest for this Committee to take regarding the espionage sections of S. 1400 would be to reject them.
I now turn to S. 1. It would bring forward all of the provisions of existing law that are necessary in maintaining the capability of this nation to defend itself against hostile or destructive action. In doing this, the injury factor would be retained, in some degree, for determining the criminality of disclosures of information.
The brevity and simplicity of the two substantive sections of S. 1, which require the space of only one page, merits admiration by every citizen. The scope, reach and sense of those sections represent devotion to basic Constitutional rights and a highly practical approach to the definition of offenses that could affect our national defense. It is of special interest that S. 1 does not use the term "classified information."
But there are some proposals which should be corrected. Details are in my full statement.
The phrase "national defense" should replace the phrase "national security" in the title of subchapter 5B, and in section 1-4E1 regarding the death Sentence. This Committee should keep on using the phrase "national defense" in the sections involving espionage and related offenses.
But the phrase "information relating to the national defense" should replace the phrase "national defense information" for the reasons stated by the Department of Justice, as explained in my comments on S. 1400. The phrase "information relating to the national defense" is court-tested, and has meaning established by the courts to protect the rights of citizens in disclosing information.
Also the proposal to define either "national defense information" or "information relating to the national defense" should be eliminated for the reasons stated in my comments on S. 1400.
Finally, the court-tested criterion for injury to the United States that is currently in 18 U.S.C. 793 (d) and (e) should replace the proposal to criminalize disclosures of information made "in a manner harmful to the safety of the United States."
Mr. Chairman, with amendments as suggested, the proposed espionage sections of S. 1 should constitute a most commendable reform of existing law.
Thank you again for the privilege of presenting these comments to this Committee.
EXTRACTS FROM FULL STATEMENT OF MR. FLORENCE
Mr. Chairman, the Department of Justice suggestion that an Executive branch security classification marking in itself would identify an item of information as affecting the national defense reflects the hoax of the century.
The system currently prescribed in Executive Order 11652 for people to classify information as Top Secret, Secret or Confidential in the interest of national security is the same system that the Army and Navy began using in World War I. Their purpose was to systematize the designation of military information as Secret or Confidential for retention in military channels until some military authority chose to disclose it.
This Executive branch classification system necessarily operates on the basic military principle that security is the responsibility of command. Thus, the assignment and retention of a classification is strictly a matter of mind. A person can decide for his purpose that information revealing a proposed or completed action warrants secrecy. At any time thereafter, he or his superior, on up to the President, may think differently and treat the information without secrecy according to his need or wish at the moment.
However, any classification marking that was put on a document containing information assigned a classification can stay on that document, even after complete disclosure. This defect of the military classification system is manifested most convincingly at the National Archives.
Available statistics show that more than 1,700,000,000 (one billion, seven hundred million) pages of historical records under National Archives jurisdiction are designated as being "classified." That would be a file of papers almost 60 miles long.
Archives personnel are currently administratively prohibited from allowing the American people, who own the historical records, to have access to them, even though information in them has become public knowledge. If Congress should enact the legislation proposed in Section 1124, disclosure of information in any of that 60-mile file of history would be made a crime.
Members of this Committee probably are fully aware of the multitudes of examples of unnecessary, unjustifiable, frivolous and absurd classification actions perpetrated and perpetuated by Executive branch people that have been revealed in the recent past. The same free-wheeling and self-serving practice of classifying information and refusing to cancel unwarranted and outdated classifications continue at present in the Executive branch.
The Department of Defense regulation, DOD 5200.1R, Subject: Information Security Program, which was authenticated by Assistant Secretary of Defense Terence E. McClary November 15, 1973, contains the sort of self-contradictory instructions that lead people to refer to the Pentagon as Fort Fumble. There are about 15 pages devoted to what is called classification policy, principles, criteria, and considerations.
Those pages provide unlimited theoretical possibilities for viewing information as qualifying for classification. Authorization could be found somewhere in all that wordage for classifying any item of information and keeping it classified.
Paragraph 1-400.c of the DOD regulation contains the following statement, which would seem to be intended to help curb classification actions: "classification shall apply only to official information requiring protection in the interests of national security." But even that suggestion
is negated in other parts of the regulation. Three examples follow:
(1) Paragraph 2-303 supports the classification of a document because the information could be associated with other information known to be in the public domain.
(2) Paragraph 2-314 supports the assignment of a classification to a compilation of unclassified information. (NOTE: This includes unclassified information such as I testified about in 1972. A copy of the title page and description of the document I showed this Committee is on pages 3055 and 3056, Part III of the report of hearings.)
(3) Paragraphs 2-700 and 2-702 support the assignment of security classifications to privately owned information.
Mr. Chairman, promulgation of the DOD regulation, with its excuses for unwarranted secrecy, received concurrence of the President's Interagency Classification Review Committee. It operates under the National Security Council to help coordinate Executive branch implementation of Executive Order 11652. The guidance in that regulation is what the mass of DOD officials and employees and the millions of people in the Army, Navy, Air Force and civilian contractor organizations live by in considering what can be called "classified information."
A highly significant example of the Department of Defense idea of what the security classification system means is the refusal to cancel classification marks on documents lawfully designated as public records during the Ellsberg-Russo trial. Eleven of the 20 documents that Dr. Ellsberg was charged with mishandling were still classified TOP SECRET when the trial began in January 1973. Nine of them were volumes of the U.S.Vietnam Relations study commonly called the Pentagon Papers.
The court had previously denied the Government's request that secrecy restrictions be imposed on classified documents if they were submitted as evidence. The court ruled that since the trial was public, all documents in evidence would be handled in the same manner. (Page 5047, trial transcript.)
But the prosecutor introduced the 11 Top Secret documents as evidence anyway. At that point they became public records. They were specifically designated as such by the trial judge, and were available for any person to read and copy. (Page 9295, trial transcript.) Information in the documents was discussed in detail by numerous witnesses testifying on the question whether they related to the national defense. The information was recorded in the trial transcript, and was also circulated by other means without any restriction whatever.
This year, January 26, 1974, I wrote to the Secretary of Defense and requested that copies of the nine volumes of the Vietnam study be made available to me under the Freedom of Information Act (5 USC 552). The General Counsel of the Department of Defense notified me by letter March 25, 1974 that my request was denied. He stated that all nine documents remain classified.
Mr. Chairman, it is this sort of bureaucratic obsession with secrecy practices that has made a security classification marking of Confidential, Secret, or Top Secret the most disbelieved and least respected symbol of federal Executive-branch authentication today. But the Top Secret Vietnam study "public records" are typical of documents that the Department of Justice is claiming should be protected under the proposed section 1124. In effect, the Department has requested that Congress make it a crime to disclose information in one of the volumes solely because it has a security classification marking.
It might seem that there is not need to dwell on the extremely serious problems involved in section 1124, since it is almost unthinkable that Congress would enact such legislation. But the Executive branch is still supporting its request for that section. This was reflected in a speech the Assistant Attorney General, Office of Legal Counsel, made April 30, 1974 at a symposium on Executive Order 11652 that was sponsored by the Interagency Classification Review Committee.
Mr. Dixon, the Assistant Attorney General, referred to the proposal to allege criminality on the basis of an assigned classification label and prohibit an accused from challenging the validity of the classification as a "controversial feature." But he also referred to the purpose of prohibiting such challenge as being essential to effective operation of the information security system.
With obvious concern about the question of fairness involved in section 1124, Mr. Dixon suggested a possible revision. Under his proposal, however, a person would be deemed to be a criminal for disclosing classified information to a loyal, trustworthy citizen if members of a governmental review committee and the Attorney General "certify that the information was properly subject to classification at the time of the offense." But there still was no indication of interest in showing injury to the nation, evil intent, or bad faith as a requirement for alleging criminality.
Mr. Chairman, the only action that would seem logical for this Committee to take regarding section 1124 is to reject it and the draft definition of "classified information." Among other dangers in such legislation would be the furnishing of a specific lawful basis for the President's security classification system as it now operates, and as any future President might want to establish for his own purpose.
There is not now any lawful basis for a security classification system. If it is the sense of Congress that the president should be given power to classify information and strive to keep it secret from the American people, authority should be stated in legislation designed and considered for that purpose. The delegation of power should not be made in the guise of definitions of offenses stated in the Criminal Code.