The First Amendment; Censorship and the CIA

The First Amendment and the Free People Weekly examination of civil liberties in the media in the 1970s produced by WGBH radio Boston in cooperation with the Institute for democratic communication at Boston University. The host of the program is the institute's director Dr. Bernard Reuben. My guest for tonight's addition is Professor Alan Dershowitz of the Harvard Law School who is going to help me untangle some of the chords in the case of the Central Intelligence Agency against Frank snip who who wrote a book. As most of you know call decent interval Mr. snap was a Central Intelligence Agency. A man in Vietnam and was in on the collapse of the American effort there and wrote what I think is a fascinating story of the collapse of our effort in all of the nuances that went with it. The agency though has has gone to court to

bring an action against Mr. snap. On the grounds that he broke his contract not to divulge secrets which he threw which he pledged himself I guess on his first day as a CIA agent some years ago. Now Allan let me start out with that question first. The case does not seem to revolve around allegations that Mr. Frank snap in this book decent interval gave out secrets. At least they don't charge that but they say he broke the contract. Now what is your view of the contract in terms of ordinary contract law. Even though this is an extraordinary case well it's an extraordinary case for many reasons. One of the contracting parties is of course the United States government. And the First Amendment clearly. Imposes limitations on what kind of contracts the United States government can ask its citizens to sign. Plainly they could

not ask you to sign a contract giving up your First Amendment rights in exchange say for an equally important right like the right to vote. Whether it can require you to give up your First Amendment rights as a condition of employment is a very serious issue that's among those that's going to be raised in this case so this isn't solely a simple contracts case although it has enormous implications because after all the federal government and state governments employ enormous numbers of people throughout the United States. And if this case were to hold that state and federal governments can require you as a condition of employment to contract away your first another amendment rights we're in for some serious problems in this country. But on the other hand I'm going to play devil's advocate from time to time. On the other hand the CIA exists in part to keep secrets. And if you are going to give away the secrets. After you leave as you go through the revolving door to civilian life again could you not be

jeopardizing the purposes of the agency. Oh there's no doubt about that. The CIA must keep certain secrets if it's to survive as a viable organization. Many organizations in this country of course must keep secrets. This case as you mention does not involve the disclosure of any classified information or indeed anything that could I think be fairly called a secret. I think at bottom the point is that snap was critical of the CIA. My view is that if snap or anybody else in the CIA had written exactly the same book about the CIA in about the last days in Saigon containing precisely the same information. But the bottom line conclusion had been the CIA performed wonderfully. It did all it could do it serve the interest of the United States government that this case would not be in court. That indeed under the contract the CIA probably would have given approval for the public showing of that book which it has done implicitly and explicitly.

Of course we know that many people in possession of government secrets have often written books ranging from the presidents of the United States for a large enormous amounts of money to secretaries of state to people in virtually every position of government. The issue in this case basically is whether you can contract away your right to publish material critical of the United States government critical of the agency for whom you worked. That I think is the essential issue in this case. Well I read decent interval from front cover to back cover I found it a very interesting literary piece of work the man obviously can write and write very well he's a very good observer. He did give a little ship of fools Catherine Porter kind of Internation to the agency of people wandering around the seas not understanding the political realities or their jobs. But if the if the case turns on the contract issue is it basically a civil liberties case since

they are. Are stating that they must have minimal standards. They may say that is not a question of the right to publish at all but the acquiescence in the contract that you do this voluntarily knowing the kind of agency that the CIA is what would your answer to be to that. Well there's no doubt they will try to make it into a contracts case a case that does not raise important issues of civil liberties but the bottom line is that if their construction prevails the government can require you to contract away your rights as with many cases the issues are extremely complex the contract by the way does not impose an absolute restriction on publishing all material. It simply requires prior approval and prior approval will be granted. Ordinarily in a case where the book is favorable to the agency and favorable to the government it will be denied. Where it's not favorable to the government now you know what is a state secret. That's a very vague term we don't have such a term by the way

under American law it's a term that grows primarily out of Eastern European law you may remember the old joke that of course Jeff told on himself once when he was visiting in the United States and somebody asked him whether they would prosecute a Soviet dissident who said that Khrushchev was a fool and Khrushchev said Of course he would be prosecuted. And they said You mean he'd be prosecuted for libel he said no no no for revealing a state secret. And one often designates as a state secret material which is simply critical of existing government politically politically embarrassing politically embarrassing personally embarrassing but that's what the First Amendment is all about. Now John Stockwell another CIA operative just left the agency after I think 12 years has written a book making allegations about the Angola situation a couple years back and the agency's alleged involvements with that William Colby a former director of the agency had written a book has just come out I think it's called Honorable men about his

life in the Central Intelligence Agency. This seems there's a man named Lang I believe who has written a book about alleged. Criminal activities of the Central Intelligence Agency a former New York Times reporter this seems to be a moment when the American public are debating the role of the Central Intelligence Agency. Is it proper to debate that role through these particular books. Should we be more discriminating. Well I think the question of being discriminating is an important one. I personally would not defend the right of a former member of the CIA to disclose the names of undercover agents to disclose ongoing intelligence secrets to disclose codes to disclose matters of that kind which are properly classified. I do think

there is an important role in the American government for secrecy after all we are involved in a struggle with people in other parts of the world who play by very very different rules. And I don't think we should disadvantage ourself by playing with only one hand. So I do think there's a role for secrecy but. Honestly I don't believe that the snap case raises that issue I think the snap case and the pleadings that the government has produced confirm this. The snap case really raises the issue of whether somebody in the know can write a book critical of the CIA which really helps the American public understand the terms of the debate. By the way as an attorney I am constrained by canons of ethics which tell me I cannot be unduly critical of judges for example. I think that's preposterous I think lawyers should be especially critical of judges because we know we operate in the courtrooms. We have access to this material. The

laypeople outside I don't every profession every group tries to protect itself among lawyers we say it would demean the dignity of the bar. Nonsense. It might insult the feelings of a particular judge. But the First Amendment is not designed to protect the feelings of judges nor is it designed to protect and insulate the CIA from legitimate criticism. But my fear is that the case goes well beyond the CIA. And after all what if h e w or. The White House or Congress were to impose similar contractual obligations on employees and simply require that before a book is published it has to be shown to the agency and receive advanced approval. What if every corporation did it and indeed many corporations have tried to do that. Corporations are legitimately upset when somebody who used to work for some hamburger company writes an exposé about how they are running their their or their business

but it seems to me the First Amendment always opts in favor of disclosure in these cases and certainly shouldn't lend the government's support to preventing this kind you know let's get back to Mr basically for those who haven't read the book. They may have read about it. It describes the last stages of Vietnam most distinctly the last year in particular the last months the last weeks the last days of the collapse of individuals the frantic search for solutions the ambassadorial dilemma of defending the thesis of the war until the very last moment the helicopters lifting off the pad the leaving behind of people at bus stops who serve the United States very well Vietnamese citizens and so on. Now he is charged with not having. Clear the book for approval through the through the processes and the using this contract situation. Now is it up to the bar to say the bar itself of the United States to look into this matter to come up with a model

contract that would be both consistent with the security needs of the United States and the reservations that we have protecting the citizens first amendment right. Well I think the government would have been much better advised instead of bringing this case against Snapp as a test case. What it calls it. I think it would have been better to convene a group of experts lawyers civil libertarians CIA people to try to work out the text of a contract that would be reasonable rather than to bring a lawsuit and to try retrospectively to recoup its losses. How anybody could measure the damages suffered by the United States government for the disclosure of what it effectively concedes to be truthful non secret information. I don't know but you're right there is a problem. Now I'm I want to make it clear I'm in this case as a Litigant. That is as a litigants a lawyer I am one of the lawyers representing Frank snap so I don't purport to be looking at this currently from an outsider's or objective point of view I'm trying to protect Snap's a civil liberties interest in this case.

But I think when this is all over it would be appropriate to sit down with a group of people and try to work out what the terms are this is after all the courts have held that there is a right in the CIA to censor appropriately classified material in the Marchetti case. This case goes well beyond that because the government is not alleging that the material is classified at the start of the charges we knew the charges were probably going to be brought against snip. We wonder now as we're discussing this whether in the middle of May where the charges will be brought against Mr. John Stockwell for his book about containing the allegation about Angola. Do you have the feeling that at the start of this that the government decided upon a political course rather than a legal course or perhaps there was an argument in the government. You say that there were no secrets there. Well there are lots of memorandum involved in Snapp's book. There are lots

of eyes only confidential modified handling kind of thing I have said in the government I know it was not. We could argue whether any one of those documents individually or collectively should be classified as documents deserving a secrecy label. But the government could argue it either way. That's right. The fact that they have chosen to argue in this case is a political decision is it not. Well all decisions involving material of this kind have to be called political. I don't think it's a political decision in the negative sense of that term I think very. Have an argument they would like to see it resolved in the courts. I would prefer if the case had not been resolved in the courts I agree with Anthony Lewis the columnist for The Times saying that the First Amendment survives best if it's not tested in litigation too often and the government might have been better advised to try to sit down as I say and prospectively work this kind of thing out. If we do see a developing phenomenon the other books you've mentioned a part of a phenomenon 10 years ago I think it would have been unthinkable for a former CIA agent to

publish any book about a previous experiences except perhaps under a pseudonym in a fictional account such as a James Bond type book. But we're seeing a greater increase in whistle blowing generally in government that's a phenomenon I think many of us generally approve of but it needs restrictions it needs parameters. And I think there's going to have to be some very hard thinking about the appropriate role of contracts the appropriate role of disclosure the appropriate role of secrecy in individuals dealing with a government agency like the CIA. Let's just assume again and to repeat that that this particular book in which you are involved with the American Civil Liberties Union investigating the questions defending him defending him that this particular case involves one person one set of situations and so on and so forth does it not. Not to leave the particulars of the case and not to involve us. Defending a client in this case does the case involve some other factors

such as the appropriate police power of the state both internal and external. Now externally we could say that we might agree or disagree with former director Helms of the Central Intelligence Agency who has commented to the effect that if more of these books are written he won't be able to read CIA won't recruit any good agents. The Soviets will probably take over the world because we won't have an intelligence apparatus there beginning as he said to add up points 1 2 and seventy nine to find out how we do things. Does it involve something else does involve the the appropriate police power of the state which is a very difficult thing for us to recognize when it's upon us as a question. We just assume that democracy goes on forever. Well no it does I think there's no doubt the countervailing interests are very substantial and the way in which we've decided basically as a government to resolve those conflicting interests is by coming up with a relatively narrow category of material that is appropriately classified. Now there's an ongoing debate as to how

narrow that should be the debate occurred over the Pentagon Papers. We in retrospect have discovered that the government's argument the Pentagon Papers case was a phony. Essentially the government though was concerned to protect its image. There were no secrets that brought about the end of our government says Bill there were one or two or all humans though that were withdrawn by mutual consent from that one right publicly designers here in the Pentagon Papers even knows I am told the allegations of secrecy contained therein were greatly overstated. I think we've learned the lesson of history that a government survives better when it exposes more that the arguments for freedom generally are more persuasive than the arguments for secrecy but that is not to diminish the arguments for secrecy in special cases. And I think what has to be done is in advance and carefully worked out systems whereby we know what our secret one are not no responsible newspaper I think for example would ever print in advance a code if it found a code.

Or battle plans invasion plans or secrets for how to produce a potent weapon. We all understand that and I would have no objection to that being codified. There are a great many gray areas but the snap case Anne and others like that I dont think get to the grey areas because I think they're what we're talking about essentially is books that are highly critical of government actions that are passed. And after all remember that snap and this is all part of the pleadings in the case I'm not revealing anything new but Snap-On made great efforts to try to get the CIA internally to evaluate its conduct in Saigon in those last final days. And he was rebuffed repeatedly. He wanted an after action analysis. He wanted to actually have the CIA do its own internal evaluation of what went wrong and he was treated with basically with contempt and said no. The matter is over. There are no lessons to learn. And at that point his only options were to publish a book or to let that secret remain a secret.

And I think his obligation to the American people into the First Amendment was properly put first and I think we've benefited from that disclosure of that history of those terrible from two points of view obligations to the millions of Vietnamese to the more than full decade of history involved to the millions killed cruelly maimed to the families destroyed. Former director Colby William Colby has recently said that he dislikes this Monday morning quarterbacking but Monday morning quarterbacking is not our best protection against future follies. Well I think it's a very important protection. The Sunday quarterback always hates the Monday morning quarterback but after all one of our functions may be to fire the Sunday quarterback and we may know we may want to have a very different game plan. So every good football team replays and has videotapes and asks outsiders to come in and evaluate their game plan and that's basically what Snap was asking to have done.

Now standing in now for the man with the pitchfork in the hands of the top of his head again I suppose this is not a fact in the case but suppose it was pointed out to you that in Mr. Snap's book there were 2 1 2 3 juicy secrets. Or perhaps not so juicy secrets but you were told that they were secret and you were convinced not being party to the CIA that they were probably right you gave them the discretionary. OK on that. Would you have taken the case. Well there's a difference between taking the case and defending the action. I would normally take a case even if I were convinced that the person what he did was wrong. I see that he got his just as you are right a fair trial. I think if I were in Snapp's place I would not publish a material which I thought was properly classified. Now there comes a time in anybody's life when they may feel they have to engage in an act of civil disobedience. I can understand certainly a person who knows that what he's publishing is classified and yet makes the decision to do

so I think that's probably what Ellsberg did in the Pentagon Papers case he felt that he was in a position where he might have an influence in turning around the Vietnam War the American sentiment toward that war. I think perhaps he did have such an influence and he may have made that decision without regard to the legalities of it. That's not really a legal issue that becomes a moral issue and then the question is do you defend him on legal grounds as well as moral grounds. One of the things I observed in reading steppes book is that it tells me an awful lot about characters as I suggested before but not so much about history the history is pretty well known but this intensive I'm in the living room now and I can explain explain to everybody who is unable to get out of here and what they're doing at the moment that introspective look is fascinating. Again I look upon it as a psychological treatise about what happens to people under stress and Bassett or Martin's unwillingness to face up to reality or allegedly according to Mr snap the the head of the United

States information agencies team of fumbling and wandering around trying to get people to help him. The heroics of individuals who left comparative safety to go out and dash to to secure 20 more people to bring them into the compound whereas others were coming in having sacrificed either 10 or 100 urging that others forget about the Vietnamese. In your reading of the book no one apart from the case please if you will give me your impressions of the story apart from the case well it's hard to do when one is immersed oneself in a case from a land Asian point of view. The only point I'd like to make about that is that some of the best histories particularly contemporary histories obviously have to deal in personalities. And when you deal in personalities you great a good many people and you upset a good many people. And it's precisely to protect against that. I think that the First Amendment has to be given breathing room. I've done studies in a good many countries about the claims of national security in suppressing

speech and in many cases what really is happening is that the book or the piece of journalism insults or in danger is the political life of a particular officeholder not of the government but of a particular office holder that office holder being a position of power then asserts state secrets state security. The difference between the security of a government and the security of a particular individual is oft times confused. And I think the first amendment has to be very sensitive to understanding that it's people who make decisions to suppress speech. And people often have a very great stake in trying to keep that particular speech suppressed because it's a day who come out looking very bad if the material is published. Well I tend to agree with that but at the same time I wonder whether this is all part of a. Situation in which the CIA is trying to turn itself about. I know that Admiral Turner for example the present director of the CIA has declared that it will be more open.

One of my former students is his assistant for Public Affairs a former naval officer named her but had to and is very anxious to get it more open. The question is how do you do this with the CIA. It's like saying I've got a very ugly person here whose ugliness goes right to the bone. And I want to have that person play this very charming person in this play. Well very difficult it is but I think it's a challenge and it's one worth accepting I think the best way for the CIA to guarantee that it's real secrets are kept secret is to be completely open about the material that's not secret to draw sharp lines the idea that everything the CIA does is an absolute secret simply won't wash in this current age of great curiosity and great interest in the functioning of government. But the more the CIA exposes the public view the more credible it's claimed that. Beyond a certain point secrecy must prevail remains So I think the CIA is being very very clever and very intelligent in disclosing as much as

possible and withholding only that small amount which is necessary to play this terrible game that we constantly have to play with the KGB and other intelligence and you mention consultation before and setting up the contract would you would you have the government establish a permanent consultative body of changing membership perhaps to advise the agency on nuances of public opinion moods. First Amendment issues. In other words so that the Turners and the Colby's and all the rest of these people in their turn could be apprised of where they are without taking the direct step of bringing charges if charges ought not be brought at that moment. I generally approve of outside evaluation outside review want a continuing basis I think it would be very good for the CIA to have. A kind of trusted advisory group not one so close to it that it's not totally independent but one that understands and is sensitive to the civil liberties issues. Sensitive to the security issues. There are people in this country after all who have

experienced both this great civil libertarians and us people who have operated very well within the security needs of this country. My colleague at Harvard Law School Professor Telford Taylor is somebody who has operated both as a leading civil libertarian and as a leading official of I think used to be a mentor to me and I think he would have mentioned a most significant person from his wartime roles at the Nuremberg post-war time role in the Nuremberg trials to his outstanding works. Since then he has shown that both can be done. There are many Telford Taylor's around though willing to stick their necks out and jawbone with government officials who have spent a lifetime keeping things secret. I understand that it's a great challenge to the government but it the government has very little choice but to accept it. Since Watergate the press will simply not be muzzled. It will inquire and it will discover there are always people who are interested in leaking information. So I think the I think the government has to accept the reality of disclosure and learn how to deal

with it in the most effective way consistent with First Amendment values. I know that on First Amendment values you're tremendously interested in what's going on in the Soviet Union and other places and I think we share a common thread here and that certainly like so many other millions of Americans we want the strongest CIA possible to protect us against the ministers that are out there people who throw all offs in jail and people who take Sharansky and bring false charges and systems of that nature. But we have to do it our style that's the point isn't it. That's exactly right and we have to do it without sacrificing what it is we're basically fighting for and that is liberty. Damn the torpedoes full steam ahead. It's been a great pleasure as always having Alan Dershowitz professor of law at the Harvard Law School and the man who is defending Frank Snapp the author of decent interval an appraisal of the CIA in Vietnam. Thanks very much Allan. Thank you burn a dragon. Good night. The First Amendment and a free people. A weekly examination of civil liberties and the media

uniting segment of the program is produced in cooperation with the Institute for democratic communication at Boston University. I w GBH radio Boston which is solely responsible for its cartoon. This is the station program exchange.