The First Amendment; Anthony Lewis
When. The eastern Public Radio Network in cooperation with the Institute for democratic communication at Boston University now presents the First Amendment and a free people a weekly examination of civil liberties in the media in the 1970s the host of the program is the institute's director Dr. Bernard Reuben. My guest for today's edition is Mr. Anthony Lewis the famed columnist of The New York Times. Tony I want to talk to you today about one of the most important subjects I guess across our desk in a long time and that is the the reactions to the book decent interval by Frank
snip which is an insider's account according to the outside blurb of what went on in the final days of Vietnam. Mr. snappers you as you know is was the head of the assessment section in Saigon for the Central Intelligence Agency. Now he came back to the United States after the debacle and just sort of reviewing this for our audience and asked to do an insiders report for the agency they they didn't cotton to that so he then decided that he would write a book. He was afraid of what would happen if they knew about this so he contracted with Random House the publishers did the book in great secret in great secrecy I think afraid by what they had done against Marchetti when they had stopped the publication of another book by another agent. And then this book came out the agency. It has gone to court saying that he violated his oath as a as a CIA man not to write anything or to publish anything without permission. The he has countersued of course is a
basic First Amendment issue for say anything else laid down for us would you. To needle is the way you see this case. Well. You know to answer that question in a brief minute is not so easy since it's the subject of a two or four hour class. But first like when we say it is it basically I'll put myself on the record. I think it basically is a First Amendment issue. Well there's no doubt of that. But I'm trying to do is just to frame it in enough context so that will make some sense and let me do it this way. Ordinarily the rule in this country which the Supreme Court has repeatedly stated is that there is a great presumption a legal constitutional presumption against prior restraint against preventing people from publishing books newspapers or whatever that was the Pentagon Papers case where the court said in effect that you could not stop
somebody from publishing unless you could make a showing that the United States would almost certainly suffer grave permanent and irreparable damage damage to its nation or its people. Now that's a very high standard. But in the Marchetti case that standard was simply forgotten. And what the court the lower court said in that case was that if the Central Intelligence Agency found out that a former employee was going to publish anything dealing with what had been classified matter it could stop him from publishing that even though the matter could not be proved to do any harm. And without the court's reviewing whether the material was properly classified was serious frivolous whatever. In other words they are giving the CIA or potentially any other government agency a tremendous power over former employees. And in Mr. Marcus case a power that will last the rest of his life. That's what's at issue in the
snap case. The rightness of the doctrine a legal doctrine that says the First Amendment and the prior restraint doctrine are just out the window. If we can use this mechanism of a secrecy agreement to pin someone down for the rest of his life that's right now here is a young man who obviously feels very deeply I've taken the task for this program of getting about one hundred eighty five pages into his I think very fine book. He can write with a flare and he is very serious about it and I think his task is to alert the American people to past disaster in order to prevent a future one. Now in this book he talks about incompetency he embarrasses people he shows how one man who was in charge his boss Mr. Pole Gar made a lot of mistakes he shows the warts and all image of Ambassador Martin he tells about the the corruption surrounding that your regime and all the rest of it. I haven't seen a secret in the first hundred eighty five pages I doubt that I'm going to
see any in the rest of it. Are they on any grounds using the phrase classified material when they mean secrets. Well what you say I think is exactly right. This is a book about a failure of policy and of competence. And it is designed I say written from the utmost of patriotism. Indeed not from a left wing but from a sort of patriotic viewpoint designed to prevent such a disaster from occurring again. And all of that says that it's a right at the center of what we deem the First Amendment to be about the First Amendment is supposed to allow us to at the very heart of it to discuss our government and its rightness or wrongness of its policy and its performance. Well I think there are no secrets in this in that sense I agree with you but the suit is a very interesting and I from my point of view dangerous because it says all of that is irrelevant. It says Mr. Snapp signed a piece of paper that says he will show us the manuscript first. We don't care whether it's classified unclassified there's no claim in the suit that there's any secret in
this. There's not even a claim. All the suit says is he had to show it to us first and let us censor it. He had to give us the chance to screen it first. Now that is a doctrine which as I say ordinarily is basically against our view in this country prior censorship. There is a serious argument as to whether there is some special character of the CIA's work even when it relates to what you've correctly described as policy matters. That makes it an exception. That's the issue. Now if I were you I'm trying to take the agency's point of view. I'm looking at the Random House the publisher's point of view that this is a violation of the First Amendment is the squelching of publishers rights and the right of freedom of expression. But then I looked at it in the in the in the very deep section that I've gone through. And I said if I was an enemy agent or if I wanted to find out about the United States in the future or if I wanted to learn how to defeat the United States in
some nefarious way could I learn anything from this. And I deduce that you can't that every time characters change everything changes and this is a book about characters is the kind of book that Dickens would appreciate rather than the next you know judgment. Dickens in A Saigon bar it's a lovely thought but I'll tell you what the answer to that would be if you put that to the agency and and you had and have you had a straightforward man who spoke to you candidly he'd say OK fine I agree with you. Indeed Admiral Turner the director said that he thought Mr. Snap had been careful not to compromise any intelligence secrets meticulous I think this is where some such word. This honest man that I suppose would say to you sure. Professor Rubin that's great fun stuff but we're worried about the other people. We want to establish a precedent that will prevent some other person who is less meticulous less careful from giving away secrets. That's our object. And there are 800 people
formally in the operations branch of the CIA who are being laid off by Admiral Turner. And there's a lot of worry in that agency that those 800 people there may be wanted to loaded guns among the people irritated enough so that they would say some things in print that would be unpleasant. Right. Well you know answer that I'm dealing with this mysterious man that we have invented you've invented the reasonable man the reasonable man an answer that I would say but even your former director Mr. Colby has second thoughts about this whole issue and feels that the Congress should pass a law or at least there should be some regulations establishing the very specific criteria that you're looking for require all agents or former agents to respect that criteria within certain bounds and let everything else go by. If an agent among the 800 that we're talking about who were fired wants to write a book that is just garbage in terms of literary value he should be allowed to do it if there are no violations of that secrecy standard. How would he answer the the
remarks on this point of Mr. Colby. Well you're asking me to push my my what should I say my empathy for this mythical reasonable man you have your losing your support I'm already I can see that. No I would I would say is this I'll make one stab at it. I'll pretend to be that mythical reasonable man one more time and I'd say you know Professor I love Bill Colby he's a wonderful man and he has a great idea for a statue. But you and I know that it's a long way between the idea for a statute and getting Congress to enact it. Now when they enact that statute I'll be willing to look at it. But until then we've got to have this what a lawyer would call into a roaring terrifying method of stopping the bad guys even though we may sweep in 100 good guys 100 useful books like Mr. snaps for one dangerous book we have to do that until Congress gives us a more precise weapon. Maybe my reasonable man would say that. Well I can see his point of view. He's worried about an agency that has
taken a terrific wall upon it you know and he's worried about an agency that's going through tremendous administrative shake up and being revised for its task and worried about what the people in the Congress think about it. Is it something that is important enough for the president who has made some remarks caustic Lee about this about being worried President Carter. Is it important for him to establish a presidential commission to handle such a problem as this so that the agency would not pursue a good book to the point of embarrassment or perhaps to a major full part. Well my answer to that is that there is a place in government where that responsibility already lies. And it is the place of which I am most critical myself and that is the Department of Justice under our system in the federal government. Only the Department of Justice can bring suit in the name of the United States. The CIA has no authority to bring legal advice the bill has already taken action if this bill authorized this right and we don't need a
presidential commission we have an attorney general we need to have an attorney general who will weigh the very considerations that we're talking about I think. That that Judge Bell should have or still should seek a legislative solution for what is really a legislative problem. This blunderbuss of a censorship right which allows an agency that isn't noticed and noted for its subtlety of sense Auriol activity that gives it this blunderbuss weapon just to bar the good along with the bad the worthless along with the valuable I think is very dangerous and I think the responsibility lay in the man who was urged to bring a lawsuit I think he could easily have said to the CIA you know you're asking me to bring a suit which is against a book that contains no secrets which you might lose and which if you win will create a dangerous weapon which is bad for you as it is for us why don't you let me look for some legislation step. I wish church béla done that. I wish he
still would do it. Well Judge Bell obviously doesn't understand the issue Attorney General Bill doesn't understand the issue I think. And there isn't enough clarity in the country. Let us now establish another premise that we are not naive. We understand why the CIA exists and we hope that it will follow its mandate and inform the Congress and the people when there is a danger and alert them to specific enemy threats. Given that or granted that there is there is no real clarity as to how public the agency should go or what its responsibilities are to the general public. It's a new kind of agency that has existed since 1945 which is clandestine in the most ordinary sense in that it violates some of the precepts we have have about all agencies in our government. Well actually to be fair as a result of. Well I think primarily as a result of the CIA's own abuses which came to light in recent
years it probably has to operate more under the glare of the public awareness than any other intelligence agency in the world today or in history. I mean we might shed a sort of slightly sympathetic ear for the Central Intelligence Agency here in that regard. It's all very novel to them they've operated. It's actually the statute was one thousand forty seven. They've operated for 30 years on the assumption that they could be entirely secret and never tell anyone anything. And that assumption is no longer valid. It's not acceptable to Congress. It's not acceptable to the president. It certainly is not acceptable to the public. We won and the Senate and the House have now both set up mechanisms to accomplish this. A degree of responsibility a degree of sharing of information certainly of anything of any information that is not demonstrably of a dangerous character. And the CIA is just going to have to adjust to that reality even though it may look longingly at the British system or the German or the
Russian and say gosh they don't have to tell anyone. That's just the way we are now. You know in reading through a decent interval by Frank snip and we should not fail to tell our people he is a very young man and is about 30 to 33 or very very presentable North Carolinian with the forthright manner of the apple pie kind of image of the American led and so on. Clean cut clean cut and I think well-intentioned. Now if this book can be criticised I have the feeling that if I were a C I A person in charge of orientation in new agents that I would collect books like this which would solve a lot of my problems for the next five years when people went to the field. It gives them a feel for the kind of personal relationships that gives them a feel for some of the nuances that no one can tell you otherwise of course. I'm not sure that the agency will take your are our advice in that regard but you know
it's a serious point imbedded in that and it is this that. And this to snap originally asked whether he could write an internal document. Rehearsing the same tragic flaws in our performance in Vietnam that late as he saw to the abandoning of thousands of sympathetic Vietnamese and disastrous policy at the end. And he didn't get much encouragement. In fact he was frustrated and he didn't get the attention they sense that anyone would pay any attention to him somehow. If you go outside and you write a book like this and you write it for the general public and in a sense therefore write it in a more descriptive way you might actually be writing a better document for those new CIA people that you're describing. You might have a better chance of communicating something important even to the CIA than you would another way. I think that that's a very good point and one that should not be underestimated in any
way. Now let's take a look at the publisher side say Random House. They are approached. You know it's a hot potato because I think publishers love hot potatoes that they're not a very conservative crowd. They are a very competitive crowd. They kept this under wraps. This really imposes a very heavy responsibility on the. On the publishing house one that publishes a more and more willing to assume under the First Amendment today. What's your reaction to that. Well I don't know whether that is a general statement about publishers the better publishers the better publishers. It happens that the president of Random House Bob Bernstein is acutely interested in the subject so maybe they are the most sensitive also their sister house jointly owned Knopf as you indicated earlier had this very unpleasant experience with the Marchetti book where apparently some CIA informant in the publishing business heard about the manuscript and told the CIA as a result of which it went to court. It just put aside the First Amendment for the moment and think
about commerce. Knopf spent three years in court litigating its right to publish that book and litigating the particular passages that the agency wanted to take up and it eventually published a book with blank spaces where they couldn't get the things cleared and it was a mess. And so after that rather direct personal experience in which Bernstein was involved he naturally was eager to avoid voided in the case of this notebook. But I think you're right about the perhaps not so acutely but in general for the publishing world and I have I have a notion of the reason for it. It doesn't come only for our own experience about the imperfection of official judgments in our lifetime we've had recent lifetime we've had Vietnam and Watergate and that's convinced most of us that we can't just rely on what officials tell us and publishers are citizens like everyone else. I think there's a particular reason and that is their experience with censorship abroad.
American publishers for example the head of the Publishers Association is when Knowlton of Harper's they've just been over in Moscow at a book fair. They have a lot of difficulty. They have many American publishers and English publishers have published social nets and other Russian writers and they have a very direct personal experience of the torment and human tragedy and and suppression of freedom that is involved in censorship more acute perhaps than they used to have and I think it makes them sensitive. There's a no other operator in this persona group here and Philip you know where do you put him in the story that he represents a real threat in the eyes of the CIA. They have pursued him in a sense because they think he give away secrets. I think Agee is certainly in a different category. He is not a man like Mark or certainly just let's deal with a snap because each each each is different three people have three former employees so far have published books. Others have
published articles incidentally and very serious valuable articles. Harry was it they wanted to others who have published very interesting and good articles but principally the three snap Marchetti and the A.G. is in a special category in that it's very clear that he has. I say this I don't want to be too strong but it is my opinion that a Julie Agee has fundamentally decided that the United States is on the wrong side and that it is has been the promoter of autocracy and totalitarianism in Latin America where he was and he produces I have to say a good deal of evidence to show that we were helping some not very nice nasty people but in doing so he hasn't just written a book criticizing the policies he has undertaken not only in his book but in his activities since writing the book to expose the names and identities of everybody
connected with the CIA in a way of sort of destroying it by exposure. Well it's hardly surprising that the CIA should resent that and should regard it as a very serious threat and want to stop the lives of individuals are at stake all the media sense. So definitely they might be yes. And the last I'd like to just shift gears a little bit away from this kind of secrecy into a chick Amory. Can we shift from secret. I don't know where you can or you have in my home always in for Halderman book I want to keep the book deal and the whole Newman's book was published by that branch of the New York Times which runs a publishing company and kept it secret from reporters in effect just the same way that this notebook was kept there's no government secrets there in the immediate sense of commercial sic commercial secrets. Now I wonder and this may be too close to the bone suggests a look I work for the New York Times and so on but I don't think that you will say that. I wonder what's the problem for the New York Times reporters when their own company in another part of the
conglomerate is keeping secret from them a story that they should get a nation they should go to the publisher of The New York Times and pound the tables and say you can't do this to us where a newspaper has first and foremost you cannot pretend that part of this conglomerate can keep a story from the American public is that too strong. Look I work for the new now and I really do. You know honestly I don't say this because I work for the New York Times and I often disagree in print with the views expressed elsewhere in the paper so I'm not shy about it. I don't really agree with that and I'll try to explain why. It is just as old as the hills. To try to get commercial advantage by copy writing material and releasing it all on a certain day. Books have publication days releases have released times and
that's the common gist of things and newspapers usually comply with it because that's just the way life works. It wasn't in this to compare the two seems to me very not comparing the two I'm just moving on either can I say. Well I mean maybe I'll just make a point by the comparison of course in that in the case of shall we say the Pentagon Papers or the US Snapp book. The government with all its power is not trying to hold to a release date. Quite to the contrary it's trying to keep something secret permanently it doesn't want it published at all. That's very serious and that is something that the press should never accept unless of course it is something that goes to them. Why should we save the existence of the United States that the atomic code or some such thing. But that isn't this case there's no attempt here to keep something secret forever or this is a routine release date for purposes of what's saving a copyright I just want to point out to you.
What people forget is that the same constitution that includes the First Amendment also includes a copyright. Cool story. What would you do though if. Again I'm saying it's more human than in seriousness what would you do if the copy of Holder means book or some key chapters fell into your hands and you knew that to keep a copyright date but. But you said oh my god this very juicy I think the man is doing so in zone zones or he is revealing this little bit that we didn't know before. What would you do. Well let's talk let's change the the book because OK it does get sort of complicated with of all the personalities in the Washington Post The New York Times and everything involved in that book. But if you if you posit X-book OK which had been bought for a very large amount and the serial rights sold so there is a genuine commercial interest which we can all understand and which incidentally helps writers and helps
publications both of which I'm in favor of and which the Constitution sought to protect in the copyright because that's the purpose to enable writers to earn a living that's good I'm in favor of writers earning a living. But suppose that there is this important book and it isn't just the usual sort of book. It's one containing a really as you I think put the proposition a really vital secret. Well I think if that secret had to do with some urgent question of how the United States should be governed and the book happened to come into my hands I probably would ignore the if I thought it was that urgent. I might ignore it but then I wouldn't. As some have done in the other case I wouldn't claim that I was protected by the First Amendment in doing so that's just laughable all I would say is you did your best to keep it a secret but it's the kind of secret that couldn't be kept for another week. You wanted to hold it til monday I'm sorry. Life doesn't work that way I wouldn't try to lamely explain that the first an amendment entitled me to be a thief. Well I think that our discussion is excellent because it does point out though
that the nuances of the First Amendment are not difficulties but are the strengths of that guarantee and that when we discuss these books what we're really concerned with is what's in the pages of any given book and the right of the author to to write them and the right of the publisher to publish them. Insofar as we don't violate some other standards such as the security of the United States as we would agree or perhaps the privacy of the individual or the reputation or reputation of an individual or anything of that sort have we left out any particular phase of this discussion because of what I have asked you about that you think is very significant. Well the only thing I'd say. We might have mentioned in particular in the publishing sphere is that the government in the snap case in the case
it has brought against Snapp has sought as damages all of his royalties from the book. Now I've heard some people say that after all if Mr. snap is interested in the good of the country and as you put it earlier warning us against this kind of conduct in future for patriotic reasons why that money should be no object for him and he should willingly give it up. Well I have to say that that well whether we like it or not we're living in a capitalist society a commercial world in which again as the copyright clause of the Constitution envisaged we don't encourage people to write and make a living on writing by paying them. You can't write books ordinarily unless you have some prospect of earning a living doing so. So I'm against seizing all these royal Actually if the government wants to seize the royalties from books they should prosecute publishers and authors of the more serious
academic books. And then they would get a dollar 95 498 whatever their total sum would be it would be what they were entitled to as always and in those of the New York Times it's a great pleasure having you on the program First Amendment and free people and I want to say it's two years to the day since you were the first guest on this program. That's a hundred and five programs ago and I hope that you will be back with us more frequently. Thank you again for this edition. Bernie driven. The eastern Public Radio Network and cooperation with the Institute for democratic communication at Boston University. As president of the First Amendment as a free people a weekly examination of civil liberties in the media in the 1970s the program is produced in the studios of WGBH Boston.
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