by Neil Sheehan
1 The President’s power to make treaties and to appoint ambassadors is of course limited by the requirement of Article II, § 1, of the Constitution that he obtain the advice and consent of the Senate, Article I, § 8, empowers Congress to “raise and support Armies,” and “provide and maintain a Navy.” And, of course, Congress alone can declare war. This power was last exercised almost 30 years ago at the inception of World War II. Since the end of that war in 1945, the Armed Forces of the United States have suffered approximately half a million casualties in various parts of the world.
2 See Chicago & Southern Air Lines v. Waterman Steamship Corp., 333 U. S. 103; Hirabayashi v. United States, 320 U. S. 81; United States v. Curtiss-Wright Export Corp., 299 U, S. 304; cf. Mora v. McNamara, cert, denied 389 U. S. 934.
3 “It is quite apparent that if, in the maintenance of our international relations, embarrassment—perhaps serious embarrassment—is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results. Indeed, so clearly is this true that the first President refused to accede to a request to lay before the House of Representatives the instructions, correspondence and documents relating to the negotiation of the Jay Treaty—a refusal the wisdom of which was recognized by the House itself and has never since been doubted. . . .” United States v. Curtiss-W right Corp., 299 U. S. 304, at 320.
1 The Congress has authorized a strain of prior restraints against private parties in certain instances. The National Labor Relations Board routinely issues cease-and-desist orders against employers whom it finds have threatened or coerced employees in the exercise of protected rights. See 29 U. S. C. § 160(c). Similarly, the Federal Trade Commission is empowered to impose cease-and-desist orders against unfair methods of competition. 15 U. S. C. § 45(b). Such orders can, and quite often do, restrict what may be spoken or written under certain circumstances. See, e. g., NLRB v. Gissel Packing Co., 395 U. S. 575, 616-620 (1969). Art. I, § 8 of the Constitution authorizes Congress to secure the “exclusive right” of authors to their writings, and no one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another. See Westermann Co. v. Dispatch Co., 249 U. S. 100 (1919). Newspapers do themselves rely from time to time on the copyright as a means of protecting their accounts of important events. However, those enjoined under the statutes relating to the National Labor Relations Board and the Federal Trade Commission are private parties, not the press; and when the press is enjoined under the copyright laws the complainant is a private copyright holder enforcing a private right. These situations are quite distinct from the Government’s request for an injunction against publishing information about the affairs of government, a request admittedly not based on any statute.
2 The “grave and irreparable danger” standard is that asserted by the Government in this Court. In remanding to Judge Gurfein for further hearings in the Times litigation, five members of the Court of Appeals for the Second Circuit directed him to determine whether disclosure of certain items specified with particularity by the Government would “pose such grave and immediate danger to the security of the United States as to warrant their publication being enjoined.”
3 “Whoever, in time of war, in violation of reasonable regulations to be prespribed by the President, which he is hereby authorized to make and promulgate, shall publish any information with respect to the movement, numbers, description, condition, or disposition of any of the armed forces, ships, aircraft, or war materials of the United States, or with respect to the plans or conduct of any naval or military operations, or with respect to any works or measures undertaken for or connected with, or intended for the fortification or defense of any place, or any other information relating to the public defense calculated to be useful to the enemy, shall be punished by a fine . . . or by imprisonment . . . .” 55 Cong. Rec. 2100 (1917).
4 Senator Ashurst also urged that “. . . ‘freedom of the press* means freedom from the restraints of a censor, means the absolute liberty and right to publish whatever you wish; but you take your chances of punishment in the courts of your country for the violation of the laws of libel, slander and treason.” 55 Cong. Rec. 2005 (1917).
5 Section 797, 18 U. S. C, provides:
“On and after thirty days from the date upon which the President defines any vital military or naval installation or equipment as being within the category contemplated under section 795 of this title, whoever reproduces, publishes, sells, or gives away any photograph, sketch, picture, drawing, map, or graphical representation of the vital military or naval installations or equipment so defined, without first obtaining permission of the commanding officer of the military or naval post, camp, or station concerned, or higher authority, unless such photograph, sketch, picture, drawing, map, or graphical representation has clearly indicated thereon that it has been censored by the proper military or naval authority, shall be fined not more than $1,000 or imprisoned not more than one year, or both.”
6 In relevant part 18 U. S. C. § 798 provides:
“(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—
“(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or
“(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or
“(3) concerning the communication intelligence activities of the United States or any foreign government; or
“(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—
“Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.”
7 The purport of 18 U. S. C. § 798 is clear. Both the House and Seriate Reports on the bill, in identical terms, speak of furthering the security of the United States by preventing disclosure of information concerning the cryptographic systems and the communication intelligence systems of the United States, and explaining that “[t]his bill makes it a crime to reveal the methods, techniques, and materiel used in the transmission by this Nation of enciphered or coded messages. . . . Further, it makes it a crime to reveal methods used by this Nation in breaking the secret codes of a foreign nation. It also prohibits under certain penalties the divulging of any information which may have come into this Government’s hands as a result of such a code-breaking.” H. R. Rep. No. 1895, 81st Cong., 2d Sess., 1 (1950). The narrow reach of the statute was explained as covering “only a small category of classified matter, a category which is both vital and vulnerable to an almost unique degree.” Id., at 2. Existing legislation was deemed inadequate.
“At present two other acts protect this information, but only in a limited way. These are the Espionage Act of 1917 (40 Stat. 217) and the act of June 10, 1933 (48 Stat, 122). Under the first, unauthorized revelation of information of this kind can be penalized only if it can be proved that the person making the revelation did so with an intent t
o injure the United States. Under the second, only diplomatic codes and messages transmitted in diplomatic codes are protected. The present bill is designed to protect against knowing and willful publication or any other revelation of all important information affecting the United States communication intelligence operations and all direct information about all United States codes and ciphers.” Ibid.
Section 798 obviously was intended to cover publications by non-employees of the Government and to ease the Government’s burden in obtaining convictions. See H. R. Rep. No. 1895, supra, at 2-5. The identical Senate Report, not cited in parallel in the text of this footnote, is S. Rep. No. Ill, 81st Cong., 1st Sess, (1949).
8 Section 793(e) of 18 U. S. C. provides that:
“(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;” is guilty of an offense punishable by 10 years in prison, a $10,000 fine, or both. It should also be noted that 18 U. S. C. §793 (g), added in 1950, see 64 Stat. 1004-1005 (1950); S. Rep. No. 2369, 81st Cong., 2d Sess., 9 (1950), provides that “[i]f two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.”
9 The amendment of § 793 that added subsection (e) was part of the Subversive Activities Control Act of 1950, which was in turn Title 1 of the Internal Security Act of 1950. See 64 Stat. 987 (1950). The report of the Senate Judiciary Committee best explains the purposes of the amendment:
“Section 18 of the bill amends section 793 of title 18 of the United States Code (espionage statute). The several paragraphs of section 793 of title 18 are designated as subsections (a) through (g) for purposes of convenient reference. The significant changes which would be made in section 793 of title 18 are as follows:
“(1) Amends the fourth paragraph of section 793, title 18 (subsec. (d)), to cover the unlawful dissemination of ‘information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.’ The phrase ‘which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation’ would modify only ‘information relating to the national defense’ and not the other items enumerated in the subsection. The fourth paragraph of section 793 is also amended to provide that only those with lawful possession of the items relating to national defense enumerated therein may retain them subject to demand therefor. Those who have unauthorized possession of such items are treated in a separate subsection.
“(2) Amends section 793, title 18 (subsec. (e)), to provide that unauthorized possessors of items enumerated in paragraph 4 of section 793 must surrender possession thereof to the proper authorities without demand. Existing law provides no penalty for the unauthorized possession of such items unless a demand for them is made by the person entitled to receive them. The dangers surrounding the unauthorized possession of such items are self-evident, and it is deemed advisable to require their surrender in such a case, regardless of demand, especially since their unauthorized possession may be unknown to the authorities who would otherwise make the demand. The only; difference between subsection (d) and subsection (e) of section 793 is that a demand by the person entitled to receive the items would be a necessary element of an offense under subsection (d) where the possession is lawful, whereas such a demand would not be a necessary element of an offense under subsection (e) where the possession is unauthorized.” S. Rep. No. 2369, 81st Cong., 2d Sess., 8-9 (1950) (emphasis added).
It seems clear from the foregoing, contrary to the intimations of the District Court for the Southern District of New York in this case, that in prosecuting for communicating or withholding a “document” as contrasted with similar action with respect to “information” the Government need not prove an intent to injure the United States or to benefit a foreign nation but only willful and knowing conduct. The District Court relied on Gorin v. United States, 312 U.S. 19 (1941). But that case arose under other parts of the predecessor to § 793, see 312 U.S., at 21-22-parts that imposed different intent standards not repeated in § 793(d) or § 793(e). Cf. 18 U.S.C. §§ 793(a), (b), and (c). Also, from the fact of subsection (e) and from the context of the act of which it was a part, it seems undeniable that a newspaper, as well as others unconnected with the Government, are vulnerable to prosecution under § 793 (e) if they communicate or withhold the materials covered by that section. The District Court ruled that “communication” did not reach publication by a newspaper of documents relating to the national defense. I intimate no views on the correctness of that conclusion. But neither communication nor publication is necessary to violate the subsection.
10 Also relevant is 18 U.S.C. §794. Subsection (b) thereof forbids in time of war the collection or publication with intent that it shall be communicated to the enemy, any information with respect to the movements of military forces, “or with respect to the plans or conduct . . . of any naval or military operations . . . or any other information relating to the public defense, which might be useful to the enemy . . . .”
1 See n. 3, infra.
2 But see Kent v. Dulles, 357 U.S. 116 (1958); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
3 There are several other statutory provisions prohibiting and punishing the dissemination of information, the disclosure of which Congress thought sufficiently imperiled national security to warrant that result. These include 42 U. S. C. §§ 2161 through 2166 relating to the authority of the Atomic Energy Commission to classify and declassify “Restricted Data” [“Restricted Data” is a term of art employed uniquely by the Atomic Energy Act]. Specifically, 42 U. S. C. § 2162 authorizes the Atomic Energy Commission to classify certain information, 42 U. S. C. § 2274, subsection (a) provides penalties for a person who “communicates, transmits, or discloses . . . with intent to injure the United States or an intent to secure an advantage to any foreign nation. . . .” “Restricted Data.” Subsection (b) of § 2274 provides lesser penalties for one who “communicates, transmits, or discloses” such information “with reason to believe such data will be utilized to injure the United States or to secure an advantage to any foreign nation . . . .” Other sections of Title 42 of the U. S. C. dealing with atomic energy prohibit and punish acquisition, removal, concealment, tampering with, alteration, mutilation, or destruction of documents incorporating “Restricted Data” and provide penalties for employees and former employees of the Atomic Energy Commission, the armed services, contractors and licensees of the Atomic Energy Commission. 42 U. S. C. §§ 2276, 2277. Title 50 U. S. C. Appendix § 781 (part of the National Defense Act of 1941, as amended, 55 Stat. 236) prohibits the making of any sketch or other representation of military installations or any military equipment located on any military installation, as specified; and indeed Congress in the National Defense Act conferred jurisdiction on federal district courts over civil actions “to enjoin any violation” thereof. 50 U. S. C. App. § 1152. 50 U. S. C. § 783(b) makes it unlawful for any officers or employees of the United States or any corporation which is owned by the United States to communicate material which has been “clas
sified” by the President to any person whom that governmental employee knows or has reason to believe is an agent or representative of any foreign government or any Communist organization.
1 Interestingly the Times explained its refusal to allow the government to examine its own purloined documents by saying in substance this might compromise their sources and informants! The Times thus asserts a right to guard the secrecy of its sources while denying that the Government of the United States has that power.
2 With respect to the question of inherent power of the Executive to classify papers, records and documents as secret, or otherwise unavailable for public exposure, and to secure aid of the courts for enforcement, there may be an analogy with respect to this Court. No statute gives this Court express power to establish and enforce the utmost security measures for the secrecy of our deliberations and records. Yet I have little doubt as to the inherent power of the Court to protect the confidentiality of its internal operations by whatever judicial measures may be required.
* The hearing in the Post case before Judge Gesell began at 8 a. m. on June 21, and his decision was rendered, under the hammer of a deadline imposed by the Court of Appeals, shortly before 5 p. m. on the same day. The hearing in the Times case before Judge Gurfein was held on June 18 and his decision was rendered on June 19. The Government’s appeals in the two cases were heard by the Courts of Appeals for the District of Columbia and Second Circuits, each court sitting en banc, on June 22. Each court rendered its decision on the following afternoon.
