Suppressing the Press

Samuel Morison would be justified in telling The New York Times, or The Washington Post, "I told you so."

Although few realized it at the time, Morison was an early casualty of the Reagan administration's attack on the First Amendment protections long taken for granted by the media.

In May, 1986 the Central Intelligence Agency (CIA) began an offensive aimed at intimidating the media on issues of national security. These incidents are part of a larger administration effort to disarm critics by suppressing information.

In 1984, Morison was a civilian researcher for the U.S. Navy. At the same time~-and with the Navy's permission-he also served as an editor for Jane's Fighting Ships, a British publication considered an authoritative journal on military affairs.

In August of that year, Jane's Defence Weekly (an affiliate of Jane's Fighting Ships) published three classified photographs of a Soviet aircraft carrier under construction at Nikolayev, a Ukranian port on the Black Sea, that had been taken by a U.S. KH-11 surveillance satellite. The U.S. Navy traced the photographs to Morison; and a search of Morison's home followed. After several classified naval intelligence reports were found in Morison's possession, he was subsequently charged with four counts of espionage, theft, and illegal possession of classified information.

The government's case relied upon an unprecedented interpretation of the 1917 Espionage Law. While the law makes it a crime to disclose classified information "to any person not authorized to receive it," Congress had specifically rejected wording that would have allowed the law to be used to prosecute leaks to the press. Lawmakers later reiterated their intention that the law apply only to the transmission of secrets to a foreign agent. Over the years the courts, too, have repeatedly refused to consider leaks to the news media as espionage.

In a preliminary hearing on Morison's case, the court debated whether U.S. espionage laws could be used in a case not involving a foreign power. The Justice Department argued that, although Morison's photographs had been passed to the media, their publication by Jane's and, later, U.S. newspapers, provided the Soviet Union with important information on U.S. intelligence capabilities, and was therefore tantamount to giving classified information to a hostile foreign power.

U.S. District Court Judge Joseph Young endorsed the Justice Department's position. In his opinion, Young declared that, even though the case did not involve "a foreign agent or the classic spy scenario... the danger to the United States is just as great when this information is leaked to the press."

The March, 1985 ruling marked the first judicial acceptance of the Justice Department's broad interpretation of the espionage laws. It opened the door for Morison's subsequent conviction, and for even further intrusions into the historical realm of press freedom.

To convict Morison, the Justice Department still had to prove that the information he had provided Jane's Defence Weekly was harmful to national security. For the Justice Department, the issue was what the Soviets could glean about U.S. intelligence capabilities from the published photographs. The Department argued that since there had never been an authorized disclosure of the KH-11 satellite photographs, the photos that appeared in Jane's, as well as other classified information discovered in Morison's home, could give the Soviet Union "a window on the [U.S.] naval intelligence process."

Morison's attorneys countered that there had been two unauthorized disclosures of KH-11 photos prior to the publication by Jane's, and that other classified reports in Morison's possession had been widely reported by the American media a year earlier. A retired CIA official who had been involved with the KH-11 satellite program testified that at the time of the photographs' publication, the Soviet Union was in possession of a technical manual for the U.S. intelligence satellite and was well aware of its capabilities. The Soviet Union, the official maintained, had gained nothing new from the publication of the photographs.

On October 17, 1985, Morison was convicted on all four counts against him, and was later sentenced to two years in prison. He remains free on $100,000 bail pending appeal.

The Morison conviction had a chilling effect on government officials who routinely disclosed official secrets to the press. The Reagan administration, however, wasn't satisfied. In May, 1986, CIA Director William Casey began publicly discussing the possibility of prosecuting news organizations themselves for publishing classified information. In a May 2 meeting with Washington Post editors, Casey asserted that the Post, the New York Times, and several other prominent newspapers and magazines had "absolutely" violated the law by publishing classified information.

Casey's accusations rest on a seldom used 1950 law that prohibits the disclosure of "any classified information" about communications intelligence activities, or any information "obtained by the process of communications intelligence from the communications of foreign governments." To date, the law has never been used to prosecute a news organization. But until the Reagan administration exhumed the 1917 law on espionage, this too had never been used to prosecute leaks to the press.

The article that led Casey to charge the Post with violation of the espionage law concerned the newspaper's publication of cables from Libya after the bombing of a West Berlin discotheque earlier this year. The Post, defending the publication of the story, noted that President Reagan had referred to the intercepted messages and had paraphrased them in his April 14 speech announcing the bombing of Libya.

The stakes were raised when Casey again threatened news organizations with prosecution under the 1950 statute if they published certain information about the trial of Ronald Pelton. Pelton, a former communications specialist for the National Security Agency, was charged with providing the Soviet Union with information on U.S. attempts to intercept Soviet communications.

After NBC News reported that Pelton had disclosed to the Soviet Union a top-secret U.S. eavesdropping operation in which U.S. submarines ventured into Soviet waters to tap into a Soviet underwater communications system, Casey formally referred the report to the justice Department for prosecution. A detailed article in the Washington Post on May 21 on the same topic led to a "review" by the CIA of espionage law violations. No charges, however, have been filed.

To further restrict leaks, in May, Reagan administration officials proposed the establishment of a special FBI "strike force" to track down the sources of unauthorized disclosures. The proposal was contained in a secret memo prepared for an administration meeting on leaks that would include Casey, Secretary of State George Schultz, and Defense Secretary Casper Weinberger.

In June, Casey telephoned authors Bob Woodward and Seymour Hersh, both of whom are working on books dealing with the CIA, to warn them that they could be subject to prosecution if the books divulge information on communications intelligence.

Casey's campaign has already had an effect. The Washington Post repeatedly delayed and altered its story on Pelton to allay CIA concerns. In an extraordinary June feature story which outlined the Post's efforts to placate the CIA and administration officials before publishing its Pelton story, Post Executive Editor Benjamin Bradlee admitted that the Post had "withheld information from more than a dozen stories so far this year" for reasons of national security.

Claims of "national secutity" have often been used to stifle news items that bear more on the political security of elected officials than the legitimate requirements of the U.S. intelligence community or military establishment. Disclosures of the results of weapons tests are routinely subject to political considerations. Successful tests are immediately lauded in official press releases, while unsuccessful tests are immediately classified.

In April 1983, for example, the Navy conducted the first tests of its $1 billion AEGIS ship defense system. After the first round, Navy officials jubilantly announced that the AEGIS system was "setting the standards of excellence," having successfully hit all 13 of the targets involved in the exercise. It turned out, however, that the early April test was only a rote exercise. It had, in fact, been a carefully rehearsed and choreographed "warm-up" performed by systems engineers and program managers. It wasn't until later that month that the Navy testing team took the controls and put AEGIS through simulated combat exercises. There were no official Navy accolades for AEGIS performance after these tests. Later still, it was discovered that, in the actual operational tests conducted by the Navy team, AEGIS was able to hit only 4 of 15 targets, and experienced significant equipment and computer malfunctions throughout the tests. The dismal results were classified and the information withheld for "national security" reasons.

Other military affairs are equally veiled. The Stealth program is completely hidden in the Department of Defense budget. Estimated to cost up to $50 billion, the bomber/fighter/cruise missile project is shrouded in layer upon layer of classification, immune from public scrutiny, and, therefore, from public debate or criticism.

The Lockheed-designed Stealth fighter is supposedly "so secret, the Pentagon refuses to acknowledge that it exists." Yet Lockheed officials recently admitted being unable to locate over 1,000 secret documents on the fighter. Although Lawrence O. Kitchen, chairperson and chief executive officer of Lockheed, told a Congressional subcommittee that "there has been no actual compromise of classified material," aircraft models billed as replicas of the Stealth fighter are being sold in toy stores across the country.

Another area off-limits to publishers is the entire intelligence community budget. Estimated at over $24 billion dollars for Fiscal Year 1987, the funds for U.S. intelligence operations conducted by organizations including the CIA, the National Security Agency, the Defense Intelligence Agency and the National Reconnaissance Office are so secret, officials authorized to know the full details are required to have top security clearances.

Louis Nemeth is a freelance writer based in Washington, D.C.