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Mr. THURMOND. Madam President, over 200 years ago, the founders of this great Nation of ours made a very wise decision. They decided that certain appointments to high political office would be made by the President but the power to do so was subject to the approval of the Senate. Our Founding Fathers placed in article II section 2 of the Constitution the 10 words, `* * * by and with the Advice and Consent of the Senate * * *.' Those words make it the responsibility of the Senate to examine the fitness of Presidential appointments to certain positions within the Federal Government. Mr. President, we on the Armed Services Committee take that responsibility very seriously.
President Clinton has made some interesting Department of Defense appointments since taking office. I have not objected to any of his choices, except one. I did not always agree with them, but I voted for them because I believe a President should have the people he wants serving in his administration unless they are incompetent or dangerous. Mr. President, Morton Halperin is dangerous. I want to make it clear that I am not here to restate a hearing that did not go well for Dr. Halperin. That record has been made and can be read by anyone who so desires. What I want to state today is that the Senate Armed Services Committee is extremely serious about its constitutional responsibilities. We are required to fully examine the background of all nominees that come before the committee for confirmation hearings.
The Department of Defense and the White House hired Dr. Halperin as a consultant in January 1993 but did not send his name to the Senate for our advice and consent until August, 8 months later. He admitted to being quite active during this period and also admitted that knowingly and in violation of DOD rules and regulations he performed a number of functions that presumed our advice and consent. In so doing, Dr. Halperin appeared to take our constitutional responsibilities a lot less seriously than we did.
Madam President, this was not an unknown person. Dr. Halperin has published more than a dozen books and more than 100 articles over the years. He has made some of the most outrageous statements I have ever read. Both in writing and at his hearing, he attempted to explain them away or deny that they meant precisely what a clear reading of them indicates. Some excerpts from Dr. Halperin's November, 1993, confirmation testimony before the Senate Armed Services Committee were recently introduced into the Congressional Record. One statement was:
I have been accused of believing that the United States should subordinate its interests to the United Nations, never using force without its consent and putting American forces at its disposal. That is false.
Madam President, Dr. Halperin may say in November 1993 this was false but earlier that same year, Dr. Halperin wrote in a publication entitled `Foreign Policy':
The United States should explicitly surrender the right to intervene unilaterally in the internal affairs of other countries by overt military means or by covert operations. Such self restraint would bar interventions like those in Grenada and Panama, unless the United States first gained the explicit consent of the international community acting through the
Security Council or a regional organization.
Madam President, if Members of this body will review those remarks, I think they will see a serious conflict, at least one that is worth discussing with a person who is being considered for an Assistant Secretary of Defense.
As I stated earlier, the Senate has the responsibility to advise and consent. We would be negligent in our duties if we did not attempt to figure out what Dr. Halperin really believed. As you can see, he says different things at different times. This is but one example and I would like to introduce for the record a number of quotes from Dr. Halperin that give me concern as to his fitness to serve in the Department of Defense or anywhere in the Federal Government. I have given a citation for each of these quotes so that Members can read them for themselves to determine if they are taken out of context. Let me read just two more to give the Senate a feel for the task the Senate Armed Services Committee faced in holding hearings to decide whether Dr. Halperin should be recommended to the Senate.
In the past, Dr. Halperin has tried to assure us that the Soviet Union was of no danger to us. In his `Defense Strategies for the Seventies,' Dr. Halperin wrote:
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The Soviet Union apparently never even contemplated the overt use of military force against Western Europe. * * * The Soviet posture toward Western Europe has been, and continues to be, a defense and deterrent one.
Revelations since the fall of the Warsaw Pact have shown how much in error this statement was. His opinion of intelligence operations was expressed in a book entitled `The Lawless State,' as follows:
Using secret intelligence agencies to defend a constitutional republic is akin to the ancient medical practice of employing leeches to take blood from feverish patients. The intent is therapeutic, but in the long run the cure is more deadly than the disease.
Why he made this statement or how much he believed this to be true is of concern to the Armed Services Committee and to all Senators, I should think. Mr. President, I would also like to insert in the Record after my remarks a document that was prepared by Mr. Francis J. McNamara and given to the committee concerning Dr. Halperin. It chronicles for the committee Dr. Halperin's involvement with the Pentagon Papers, a renegade CIA agent named Phillip Agee and his early association with a convicted Vietnamese spy named David Truong. To have ignored information such as this would have been totally irresponsible. Dr. Halperin may have had an unpleasant experience before the Armed Services Committee and may have requested his name be withdrawn for that or any number of other reasons. What I don't want the Senate to think is that, because the hearings were terminated, all the areas that he was questioned on, both in writing and at the hearing, are therefore not true. Dr. Halperin--no one else--made the statements he was questioned about. He addressed them by attempting to explain that he either no longer held those views or that they were taken out of context or that he may not have written them as artfully as he could have. Most explanations were totally unacceptable to this Senator and others I have been told.
Many members of the committee had significant problems with Dr. Halperin. I still do, and I believe from what I have read and heard, that he should not be allowed to deal in military matters, security matters or international relations. The President has placed him in another sensitive position at the national Security Council, and I believe the country will pay a price for that. This time, he chose to place him where the Senate could not give its advice and consent. I can fully understand why the President would choose to do this, if he did not want Dr. Halperin to be rejected by the Senate.
There being no objection, the material was ordered to be printed in the Record, as follows:
`Led Astray by the CIA,' The New Republic, June 28, 1975.
`The Most Secret Agents,' The New Republic, July 26, 1975.
`CIA: Denying What's Not in Writing,' The New Republic, October 4, 1975.
`The Cult of Incompetence,' The New Republic, November 8, 1975.
`The Lawless State: The Crimes of the U.S. Intelligence Agencies,' with Jerry J. Berman, Robert L. Borosage and Christine M. Marwick, Center for National Security Studies, Washington, 1976.
`Secrecy and the Right to Know,' with Daniel N. Hoffman, Law and Contemporary Problems, Summer 1976.
`Freedom Versus National Security,' with Daniel N. Hoffman, Chelsea House Publishers, New York, 1977.
`Top Secret: National Security and the Right to Know,' with Daniel N. Hoffman, New Republic Books, Washington 1977.
`Oversight is Irrelevant if CIA Director Can Waive the Rules,' The Center [for National Security Studies] Magazine, March/April 1979.
`The CIA's Distemper,' The New Republic, February 9, 1980.
`Secrecy and National Security,' Bulletin of the Atomic Scientists, August 1985.
`The Case Against Covert Action,' The Nation, March 2, 1987.
The achievement in which I take the greatest pride is the largely behind-the-scenes efforts of the ACLU to defend the First Amendment by defeating the flag-burning constitutional amendment in both houses of Congress: Washington Post, 8 September 1992.
The constitutional rights of Americans have also been major casualties in the `war on drugs * * * Gross invasions of privacy such as urine testing, excessive property forfeitures and seizures without due process of law, the circulation of extensive government files on suspected drug offenders, and border patrols and checkpoints that inhibit free travel, all are among the draconian actions deemed necessary to wage the war on drugs: `Ending The Cold War at Home,' Foreign Policy, Winter 1990-91 (with Jeanne Wood).
(Morton Halperin's criticism of scientists who refuse to help lawyers representing The Progressive and its editors oppose government efforts to halt the magazine's publication of detailed information about the design and manufacturing of nuclear weapons:)
They failed to understand that the question of whether publishing the `secret of the H-bomb' would help or hinder non-proliferation efforts was beside the point. The real question was whether the government had the right to decide what information should be published. If the government could stop publication of [this] article, it could, in theory, prevent publication of any other material that it thought would stimulate proliferation: `Secrecy and National Security,' The Bulletin of the Atomic Scientists, August 1985, p. 116.
It is clearly a violation of the rights of free speech and association to bar American citizens from acting as agents seeking to advance the political ideology of any organization, even if that organization is based abroad. Notwithstanding criminal acts in which the PLO may have been involved, a ban on advocacy of all components of the PLO's efforts will not withstand constitutional scrutiny: The Nation, October 10, 1987.
Having had administrative responsibility for the production of the [Pentagon] Papers, I knew they contained nothing which would cause serious injury to national security. I watched with amazement as the Justice Department, without knowing what was in the study, sought to persuade court after court that they should be suppressed: `Where I'm At,' First Principles, September 1975, p. 16.
International terrorism is rapidly supplanting the communist threat as the primary justification for wholesale deprivations of civil liberties and distortions of the democratic process: `Ending The Cold War At Home,' Foreign Policy, Winter 1990-91 (with Jeanne Wood).
Standard Form 86 (questionnaire for applicants to sensitive or critical government positions) asks intrusive and irrelevant questions regarding Communist party membership, prior arrests (whether or not they resulted in a conviction), drug and alcohol abuse, and private medical information, including mental health history: `Ending The Cold War At Home,' Foreign Policy, Winter 1990-91 (with Jeanne Wood).
(Morton Halperin on classification of materials:)
The first category [of documents that should be automatically released] includes information necessary to congressional exercise of its constitutional powers to declare war, to raise armies, to regulate the armed forces, to ratify treaties, and to approve official appointments: Top Secret: National Security and the Right to Know, 1977.
(Morton Halperin on the Freedom of Information Act:)
Release under the FOIA have provided valuable background information on already exposed CIA covert action * * * The FOIA has not been a primary tool in uncovering previously undisclosed CIA covert action. Explicit exemptions under the Act for Information that could harm `national security' have prevented such revelations: `The CIA and Covert Action,' published by the Campaign for Political Rights of which Halperin was a Steering Committee member, June 1982.
(Morton Halperin on the Freedom of Information Act:)
More recently, through the Project on National Security and Civil Liberties, I have been involved in an effort to use the Freedom of Information Act to pry `secrets' from the national security bureaucracy: `Where I'm At,' commentary by Morton Halperin, First Principles, September 1975.
* * * I suggest * * * that the United States be prohibited from being the first to use nuclear weapons. In my judgement, there are no circumstances that would justify the United States using nuclear weapons, unless those weapons were used first by an opposing power: `American Military Intervention: Is It Ever Justified?' p. 670, June 9, 1979, The Nation.
* * * Every action which the Soviet Union and Cuba have taken in Africa has been consistent with the principles of international law. The Cubans have come in only when invited by a government and have remained only at their request. * * * The American public needs to understand that Soviet conduct in Africa violates no Soviet-American agreements nor any accepted principles of international behavior. It reflects simply a different Soviet estimate of what should happen in the African continent and a genuine conflict between the United States and the Soviet Union: `American Military Intervention: Is It Ever Justified?', The Nation, June 9, 1979, p. 668.
One of the great disappointments of the Carter Administration is that it has failed to give any systematic reconsideration to the security commitments of the United States. [For example, President Carter's] decision to withdraw [U.S. ground forces from Korea] was accompanied by a commitment to keep air and naval units in and around Korea--a strong reaffirmation by the United States of its security commitment to Korea. This action prevented a careful consideration of whether the United States wished to remain committed to the security of Korea * * *. Even if a commitment is maintained, a request for American military intervention should not be routinely honored: The Nation, June 9, 1979, p. 670.
The United States should explicitly surrender the right to intervene unilaterally in the internal affairs of other countries by overt military means or by covert operations. Such self restraint would bar interventions like those in Grenada and Panama, unless the United States first gained the explicit consent of the international community acting through the Security Council or a regional organization. The United States would, however, retain the right granted under Article 51 of the U.N. Charter to act unilaterally if necessary to meet threats to international peace and security involving aggression across borders (such as those in Kuwait and in Bosnia-Herzegovina.)--Guaranteeing Democracy, Summer 1993 Foreign Policy, p. 120.
The only way to stop this pattern [of abuse] is to impose an absolute requirement of public approval to bar paramilitary operations that are covert: `Lawful Wars,' Foreign Policy, Fall 1988.
(Morton Halperin's position on legislation to set heavy criminal penalties for Americans who deliberately identify undercover U.S. intelligence agents:)
[Such legislation] will chill public debate on important intelligence issues and is unconstitutional * * *. What we have is a bill which is merely symbolic in its protection of agents but which does violence to the principles of the First Amendment: UPI, April 8, 1981.
(1971, Defense strategies for the seventies:)
The Soviet Union apparently never even contemplated the overt use of military force against Western Europe. The Soviet posture toward Western Europe has been, and continues to be, a defensive and deterrent one.
(Concerning the espionage trial of Truong and Humphries:)
Morton Halperin, told the news conference that the American Civil-Liberties Union will file a friend-of-the-Court brief challenging the conviction of the two men.
He (Halperin) said it will challenge the theory that theft of any informaiton developed by the government is a crime, that espionage can be alleged without proving intent to injure the United States, and that the President has inherent approval to authorize searches and electronic surveillance without a court warrant: 1978, Associated Press.
(Concerning the espionage trail of Truong an Humphries)
In my judgement there is nothing in those documents relating to national defense * * * There is nothing in those documents which might reasonably be expected to have threatened United States foreign policy or benefitted another nation.
Halperin said that, `I have closely examined seven cables cited in the indictment and concluded that they had been improperly classified as confidential or secret, and in one case Top Secret.'--1978, Associated Press.
In the name of protecting liberty from communism, a massive undemocratic national security structure was erected during the Cold War, which continues to exist even though the Cold War is over. Now, with the Gulf War having commenced, we are seeing further unjustified limitations of constitutional rights using the powers granted to the executive branch during the Cold War: United Press International, January 28, 1991.
Using secret intelligence agencies to defend a constitutional republic is akin to the ancient medical practice of employing leeches to take blood from feverish patients. The intent is therapeutic, but in the long run the cure is more deadly than the disease. Secret intelligence agencies are designed to act routinely in ways that violate the laws or standards of society: The Lawless State: The Crimes of the U.S. Intelligence Agencies, 1976, p. 5.
You can never preclude abuses by intelligence agencies and, therefore, that is a risk that you run if you decide to have intelligence agencies. I think there is a very real tension between a clandestine intelligence agency and a free society. I think we accepted it for the first time during the Cold War period and I think in light of the end of the Cold War we need to assess a variety of things at home, including secret intelligence agencies, and make sure that we end the Cold War at home as we end it abroad: MacNeil/Lehrer Newshour, July 23, 1991.
[T]he primary function of the [intelligence] agencies is to undertake disreputable activities that presidents do not wish to reveal to the public or expose to congressional debate: The Lawless State, 1976, p. 221.
* * * The intelligence [service's] * * * monastic training prepared officials not for saintliness, but for crime, for acts transgressing the limits of accepted law and morality * * * The abuses of the intelligence agencies are one of the symptoms of the amassing of power in the postwar presidency; the only way to safeguard against future crimes is to alter that balance of power.
Clandestine government means that Americans give up something for nothing--they give up their right to participation in the political process and to informed consent in exchange for grave assaults on basic rights and a long record of serious policy failures abroad: The Lawless State: The Crimes of the U.S. Intelligence Agencies, 1976 pp. 222-57.
Spies and covert action are counterproductive as tools in international relations. The costs are too high; the returns too meager. Covert action and spies should be banned and the CIA's Clandestine Services Branch disbanded: The Lawless State, 1976, p. 263.
Secrecy * * * does not serve national security * * * Covert operations are incompatible with constitutional government and should be abolished: `Just Say No: The Case Against Covert Action,' The Nation, March 21, 1987, p. 363.
* * * Covert intervention, whether through the CIA or any other agency, should be absolutely prohibited * * *: `American Military Intervention: Is It Ever Justified?' The Nation, 9 June 1979, p. 670.
The budgets of most intelligence agencies remain secret. Such secrecy is not part of any legitimate national security purpose * * * The CIA should be limited to collating and evaluating intelligence information, and its only activities in the United States should be openly acknowledged actions in support of this mission. The agency's clandestine service should be abolished: `Controlling the Intelligence Agencies,' First Principles, October 1975, p. 16.
It may be true that other nations have, and will continue to engage in covert action. But this is far from proper justification for its use by the U.S. Indeed, few nations in the world have used covert action as aggressively and comprehensively as the U.S. And in no other country does the use of covert action conflict so violently with the guiding principles of a nation's constitution and the desires of its people * * * Covert action violates international law: `The CIA and Covert Action,' June 1982 report produced by the Campaign for Political Rights.
The ACLU believes, and I believe that the United States should not conduct covert operations * * * The record now before this committee and the nation demonstrate that covert operations are fundamentally incompatible with a democratic society: Testimony provided by Halperin before the House Select Committee on Intelligence regarding Prior Notice of Covert Actions to the Congress, April 1 and 8, 1987 and June 10, 1987, pp. 90 and 96 of the hearing record.
The FBI should be limited to the investigation of crime; it should be prohibited from conducting `intelligence' investigations on groups or individuals or individuals not suspected of crimes: `Controlling the Intelligence Agencies,' First Principles, October 1975.
The only way to stop all of this is to dissolve the CIA covert career service and to bar the CIA from at least developing and allied nations: Morton Halperin's review of Philip Agee's book Inside the Company; CIA Diary wherein no mention is made of the fact that the book contained some thirty pages of names of U.S. covert operatives overseas. Review found in First Principles, September 1975, p. 13.
In the wake of Vietnam and Watergate, the question must be faced: Should the U.S. government continue to engage in clandestine operations? We at the Center for National Security Studies believe that the answer is `No'; that the CIA's covert action programs should be ended immediately. The risks and costs of maintaining a clandestine underworld are too great, and covert action cannot be justified on either pragmatic or moral grounds: `CIA Covert Action: Threat to the Constitution,' Pamphlet published by the Center for National Security Studies, 1976. Morton Halperin is listed as a `participant' and at the time was Chief Editorial Writer for the CNSS' publication, First Principles.
Defenders of the CIA argue that the Agency's covert actions protect the `national security.' Yet historically, covert action has had little, if anything, to do with the reasonable defense of the country * * * Morton Halperin * * * has stated that he knows of no program of covert action which was necessary to the national security: `CIA Covert Action: Threat to the Constitution,' Pamphlet published by the Center for National Security Studies, 1976. Morton Halperin is listed as a `participant' and at the time was Chief Editorial Writer for the CNSS' publication, First Principles.
A bureaucracy trained in the nefarious tactics of espionage and of covert action is a constant threat in an open society: `CIA Covert Action: Threat to the Constitution,' Pamphlet published by the Center for National Security Studies, 1976. Morton Halperin is listed as a `participant' and at the time was Chief Editorial Writer for the CNSS' publication, First Principles.
A bureaucracy skilled in deceit is suspect in any government, but it is particularly destructive to a republic: `CIA Covert Action: Threat to the Constitution,' Pamphlet published by the Center for National Security Studies, 1976. Morton Halperin is listed as a `participant' and at the time was Chief Editorial Writer for the CNSS' publication, First Principles.
Covert operations involved breaking the laws of other nations, and those who conduct them come to believe that they can also break U.S. law and get away with it * * * Covert operations breed a disrespect for the truth: `Just Say No: The Case Against Covert Action' The Nation, March 21, 1987.
* * * even if covert action is not `misused,' it still corrodes our constitutional order: `CIA Covert Action: Threat to the Constitution,' Pamphlet published by the Center for National Security Studies, 1976. Morton Halperin is listed as a `participant' and at the time was Chief Editorial Writer for the CNSS' publication, First Principles.
(Morton Halperin on Philip Agee's exposure of CIA agents using State Department documents)
It is difficult to condemn people who do that: Testimony before the House Intelligence Committee by Morton Halperin, January 4, 1978.
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No country can be secure without good intelligence. Good intelligence cannot be obtained unless the confidentiality of a nation's operatives is maintained.
No single individual has done as much harm to the CIA--and thus in certain respects to the security of the U.S. and all its people--as has Philip Agee, the renegade CIA officer who resigned from the Agency at its request in 1968 and has since devoted himself to exposing its covert personnel and friends wherever and whoever they are.
Agee has not achieved his success in this area alone. He could not have inflicted the damage he has on this Country without the help of his colleagues at CounterSpy and the Covert Action Information Bulletin (CAIB), his two major exposure instruments, and others who in various ways have aided, abetted, publicized, defended and supported them and him.
Agee's first book, `Inside The Company: CIA Diary' published in 1975, included an appendix that listed the names of over 425 individuals and organizations (unions, publications, corporations, banks, institutes, etc.) he claimed were secretly employees, agents, or fronts for the CIA. The book eventually was translated into `at least 16 foreign languages,' according to press accounts.
His next book, `Dirty Work: The CIA in Western Europe,' released in 1978, contained a list of over 700 alleged CIA officers, agents, assets, informants, contacts and sources.
Following this in 1980, came `Dirty Work II: The CIA in Africa,' with its 238 page list of those supposedly performing the same functions in that part of the world and, in 1982, `White Paper? Whitewash!,' Agee's attack on the State Department's `White Paper' on El Salvador.
These books were supplemented by ongoing lists of `agents' published in CounterSpy and Covert Action Information Bulletin and by Agee's and his supporters' press conferences, speeches and articles. By the end of 1981, Agee's CAIBers were boasting that they had exposed over 2000 U.S. covert intelligence personnel.
The vital intelligence loss to this country was incalculable. Their usefulness destroyed, CIA personnel had to be taken out of clandestine activities in the locales in which they were serving, or transferred (usually with their families) to new locations where they faced likely foreign language problems, lack of contacts, new cultures to adjust to and other problems limiting their effectiveness. The same applied, of course, to those dispatched to replace them when personnel with appropriate skills were available. The dollar cost of these shifts ran to millions.
The CIA station chief in Athens, Richard Welch, was murdered by terrorists after two or three listings in CounterSpy and then being identified in a local paper (which checked with the magazine to confirm his identity). After Agee visited Managua in 1981 and a pro-Sandinista newspaper published a list of alleged CIA personnel in the U.S. Embassy there, some received death threats. A number, fearful for the lives of their wives and children, sent them out of the country.
These continuing exposures had extensive adverse effect on CIA morale. Officers everywhere--and all their contacts, too--lived in constant fear of being named next. The effect on foreign sources, assets and agents, some of them cooperative friends of the U.S. for decades, was particularly devastating. They did not have the luxury of being able to relocate themselves and their families to safer places. With their parents, wives and children they had to stay in place, in danger, no matter how sensitive and perilous their positions. Sources began to dry up everywhere.
CIA General Counsel Daniel Silver told the 1980 American Bar Association convention in Chicago the exposures were `a devastating problem' for the Agency. Deputy CIA Director Frank Carlucci told the '80 convention of the Association of Former Intelligence Officers (AFIO) `There is no subject on which people in the Agency feel more strongly, nor on which I feel more strongly. We must do something to solve this problem.' He had asked Congress, he said, `What more do you need to act, another dead body?'
Following is at least part of the public record of Morton Halperin's actions relative to CounterSpy, the Covert Action Information Bulletin and Philip Agee:
CounterSpy's publisher, the Organizing Committee for a Fifth Estate (OC 5), according to its 1975 annual report, `had been instrumental in organizing several other organizations' that year, one of which was `The Public Education Project on the Intelligence Community (PEPIC) * * * a year long effort.
Morton Halperin, the report continued, was a member of PEPIC's speakers bureau, all of whose members `will be donating their time, energy and fees to PEPIC to ensure its survival.'
The Senate Internal Security subcommittee, in its 1977 annual report, identified PEPIC as one of the `several fronts' set up by Agee's OC-5 to accomplish its objective of finding `those individuals with research or organizing abilities to join the Counter-Spy Team.'
Halperin was Director of the Project on National Security and Civil Liberties, jointly funded by the ACLU Foundation and the Center for National Security Studies (CNSS) of the Fund for Peace, which Halperin also directed. The Project began publishing `First Principles', usually on a monthly basis, in September, 1975 with Halperin its chief editorial (`Point of View') writer.
CounterSpy describes itself as `The Quarterly Journal of the Organizing Committee for a Fifth Estate'. In addition to publishing OC-5's 1975 annual report in its Winter '76 issue, it included what it termed its `Resource List' of groups working in `the areas of national security and civil liberties', with the literature available from each. It listed: Project on National Security and Civil Liberties [Address and telephone number]; First Principles (newsletter published monthly except July and August); Led Astray by the CIA by Morton Halperin; The Abuses of the Intelligence Agencies, ed. by Jerry Berman and Morton H. Halperin; and
Center for National Security Studies [address and telephone number same as above Project] [six items listed]; The Abuses of the Intelligence Agencies by Jerry Berman and Morton Halperin.
CounterSpy's editors seemed to like the Berman-Halperin `Abuses work. Of the many items listed as available from its resource list of 10 organizations, it was the only one mentioned twice. Interestingly, however, they did not note that Halperin was director of both the `Project' and the `Center' on their resource list.
One other item in the Winter '76 CounterSpy is worth noting. The contents page, beneath the names of its editorial board members and coordinators, printed this boxed item: CounterSpy sends special thanks to: Morton Halperin [21 others were also named, with nine other names, like Halperin's being in bold type].
Agee's CounterSpy did not say what its `special thanks' to Halperin were for. Perhaps he made many well-paid speeches and gave all his fees, as pledged, to PEPIC, OC-5's front; perhaps it was for his favorable review of Agee's `Inside The Company' in `First Principles' (see following paragraphs); it could have been for any number of things he might have done for CounterSpy.
Halperin favorably reviewed Agee's `Inside The Company: CIA Diary' in the very first issue of `First Principles.' Moreover, he managed to do so without even metioning the fact that in his introduction Agee thanked the Cuban Communist Party and Cuban government agencies for the `important encouragement' and `special assistance' they had given him in writing the book. Halperin also failed to mention the fact that the book contained the names and identities of over 425 people in all parts of the world Agee claimed were officers, agents and cooperators with the CIA.
Giving full credence to Agee's allegations of horrendous CIA wrongdoing, Halperin wrote: `The only way to stop all of this is to dissolve the CIA covert career service * * *.
Halperin next wrote an article, `CIA News Management,' published in the Washington Post (1/23/77) in which he absolved Agee and CounterSpy of all blame for the assassination of Richard Welch, the CIA Athens station chief, placing responsibility for the killing on Welch himself and the CIA.
The following month, Halperin traveled to England to help Agee who was fighting deportation from that country for `regular contacts * * * with foreign intelligence agents,' disseminating information `harmful to the security of the United Kingdom,' and aiding and counseling others in `obtaining information' which, if published, `could be harmful' to the United Kingdom's security.
Agee was deported from England despite Halperin's efforts in his behalf.
Halperin testified before the House Intelligence Committee on January 4, 1978, rehashing his Washington Post accusations against Welch himself and the CIA for Welch's death and again cleansing Agee and CounterSpy of all blame.
Referring to the exposure of covert CIA personnel by Agee and others on the basis of information gleaned from State Department documents, Halperin asserted: `it is difficult to condemn people who do that.'
(Others have different views. In a 1980 Senate hearing on an agent identities protection bill, former Senator Jake Garn said Agee's actions `border on treason' and Senator John Chafee stated it was his opinion that `this willful disclosure of the names of persons who are unlawfully engaged in intelligence work for this Nation falls in the same category * * * as an act of treason.')
The January 1978 issue of Halperin's `First Principles' featured a page-one article by him, `The CIA and Manipulation of the American Press,' in which he once more played his tired refrain about Agee and CounterSpy being blameless--and Welch and the CIA being the opposite--for the station chief's death (he threw in some other items as well to bolster his ongoing, basic theme of undemocratic CIA operations).
With Halperin's permission, his `CIA News Management' column was republished in Agee's 1978 book, `Dirty Work: The CIA in Western Europe.' Publisher Lyle Stuart proclaimed in a newspaper ad for the book that it contained `a list of more than 700 CIA agents currently working in Western Europe. It completely blows their cover.' He then added: `But `Dirty Work' is more than that. A comprehensive picture of the CIA emerges in `Dirty Work.' [two other contributors] * * * and Morton Halperin have all shown considerable courage in informing America about the seamy side of American espionage * * *'
There is no indication that Halperin was displeased by this pat on the back from Agee's publisher.
Halperin was chairperson of the Campaign to Stop Government Spying (CSGS) which emerged from a Conference on Government Spying he had addressed in Chicago in January 1977. Arranged by the cited Communist front, the National Lawyers Guild (NLG), the conference's co-conveners included the ACLU, with Halperin director of its Washington office; the Center for National Security Studies (CNSS), which Halperin directed; the National Emergency Civil Liberties Committee, another cited front for the Communist Party; the National Conference of Black Lawyers, affiliated with the Soviet Union's then international attorneys' front, the International Association of Democratic Lawyers, and the Political Rights Defense Fund, a front of the Trotskyist Communist organization, the Socialist Workers Party (SWP). The conference's steering committee included the SWP, ACLU, CNSS, NLG, Institute for Policy Studies, and Agee's OC-5.
Halperin's CSGS was an `anti-U.S. intelligence' conglomerate composed of about 80 organizations. Listed on its letterhead as a member of its steering committee was Agee's CounterSpy.
Halperin's CSGS changed its name the following year to the more politically acceptable Campaign for Political Rights (CPR), with Halperin still its chairperson. Its new letterhead listed not only CounterSpy as a member of the CPR steering committee, but also its successor, Agee's Covert Action Information Bulletin (CAIB). Both publications were heavily into the `naming CIA names' game. 1
1 The original CounterSpy with which Agee was affiliated began publication with its March 1973 issue; it ceased publishing after its November 1976 issue--until publication was resumed under new management in December 1978.
Agee was not affiliated with the new CounterSpy, he and two others formerly associated with it having announced publication of its successor, the Covert Action Information Bulletin (CAIB), while attending the Soviet-controlled eleventh World Festival of Youth and Students in Havana on July 28, 1978, the opening day of the festival. Free copies of the first issue of CAIB, dated July 1978, were distributed to those at the festival. Agee and his associates said the CAIB was intended to be: `a permanent weapon in the fight against the CIA, the FBI, military intelligence and all the other instruments of U.S. imperialist oppression.'
As chairperson of both the CSGS and CPR, Halperin must have had some say about just which groups would be invited to join, and which would be selected for leadership positions in, his organization.
There is no record that he ever opposed, or indicated unhappiness about either U.S.-security-destroying publication being in the organization's leadership.
In late 1978, Halperin's CPR published a `Materials List' to assist its members in their agit-prop work against American intelligence agencies. Agee's `Inside the Company' was included in it under the category `Memoirs by Former Employees' and his Covert Action Information Bulletin under `Sources of Information.'
`Organizing Notes' (`O.N.'), according to its masthead, was `published by the Campaign for Political Rights.' Released eight times a year, it was designed--like `First Principles,' which it closely resembled--to keep its readers abreast of current developments related to the CPR's basic mission. Like `First Principles,' it had an `Update' feature which it said was `a combined effort of `First Principles' and `Organizing Notes'.' (`First Principles' had regularly featured an `Update' section).
Halperin's name did not appear on the masthead of `Organizing Notes,' but, as chairperson of the CPR he had to be responsible for its contents, just as he was for the contents of the CPR's `Materials List.'
`Organizing Notes' routinely promoted both Agee's CAIB and CounterSpy as containing worthwhile information of value to its readers.
CAIB received promotional boosts in the following issues of `ON': 1-2/79 p. 3; 4-5/79 pp. 8 & 19; 7-8/80 pp. 12 & 14; 7-8/81 p. 14.
CounterSpy received the same treatment in these issues: 1-2/79 pp. 5 & 13; 4-5/79 p. 6: 8-9/80.
This tabulation is based on a check of scattered issues of `ON.' A thorough check of all issues would undoubtedly reveal a considerably greater number of positive mentions. It is interesting, too, to note what Halperin's `ON' considered interesting in various issues:
CounterSpy 12/78: `lists numerous CIA agents now overseas.'
CAIB 1/79: `reprints a top secret U.S. army memo on infiltrating and subverting allies--although the Army continues to deny it was an official document.'
[Fact: the Army did more than deny it was `an official document.' The alleged `army memo' [`F. M. 30-31B'] was exposed as a KGB forgery. See House Permanent Select Committee on Intelligence, hearing, `Soviet Covert Action (The Forgery Offensive),' February 1980, pp. 12, 13 and Appendix: `CIA Study: Soviet Covert Action and Propaganda,' pp. 66 and 67; 176-185.]
It should be noted that, at the same time, Halperin's `First Principles' promoted Halperin's `Organizing Notes.' The following appeared in the former's May `77 issue: Campaign To Stop Government Spying. The Campaign is now publishing a monthly newsletter, Organizing Notes. It is available free to people organizing around the issue of government spying. Contact them at [address and telephone number] if you would like to be included on their mailing list.
Importantly, Halperin's `First Principles', like `ON', also routinely gave favorable notice to the contents of current issues of both CounterSpy and the Covert Action Information Bulletin. In the period July-August '80 to September-October '83, for example, at least eight issues of CounterSpy were promoted in the pages of Halperin's `First Principles', along with a fair number of the CAIB. The following is one item that appeared in `First Principles' regular `In the Literature' section, subsection `News-letters, Journals, Etc': `Covert Action Information Bulletin, Oct. 1981. In anticipation of Congressional passage of the agents identities bill, CAIB publishes its last naming names column, and indexes all previous identifications (sic).'
And Halperin says he does not approve of `naming names'!
If `ON' gave frequent favorable notice to Agee's CAIB, it is also true that the CAIB returned the favor by drawing favorable attention to Halperin's CPR. Examples:
Agee's CAIB editorialized on pending CIA legislative charter proposals in its June 1980 issue. In a subsection of the editorial, `The Work of the Left,' it noted: `Throughout this Congressional debate, considerable and effective pressure was brought to bear by the organized opposition to government spying. The Campaign for Political Rights (to which CAIB belongs), the Center for National Security Studies, the American Civil Liberties Union [in all of which Halperin played a leading role] all gathered support against the charter . . . The struggle, to the surprise of many, began to have results. By April, the charter was `dead.'
Agee's CAIB, like all Communist-left publications and organizations, was disturbed by the fact that Executive Order 12036 governing the intelligence community and signed by President Carter on January 4, 1978, might be amended by the Reagan Administration in such a way as to restore some of the capabilities the Carter decree had denied the community.
Commenting on the March 10, 1981 leak of the contents of a new draft Reagan order, CAIB made the following statement in its April 1981 issue: `The proposal contains many . . . authorizations for intrusive spying and manipulation by the FBI and other intelligence agencies, even if all the references to the CIA are removed. This proposal . . . also 4/81 pp. 3 & 51 must be opposed. Persons wishing further information should write to: The Campaign for Political Rights, [address].'
The thinking of Agee's CAIB and Halperin's CPR on the contents of executive orders governing the intelligence community was obviously very similar.
Under `Other Publications of Interest' in the July-August issue of Agee's CAIB (p. 51), the following item appeared: `Bugs, Taps and Infiltrators: What to do About Political Spying,' 6-page leaflet free (contribution welcome); from the Campaign for
Political Rights: [address given]. A brief outline of how to look for and what to do about infiltrators.'
[The `Naming Names' section of this CAIB issue identified alleged CIA `infiltrators' in Canada, Central African Republic, Ghana, Greece, Liberia, Malaysia, Mauritius, Nigeria, Senegal, South Africa, Sudan and Switzerland.]
Halperin's `Organizing Notes' for 11/12/80 (p.10) reported that on October 3, Judge Gerhard Gesell had ruled that per the secrecy agreement signed by all CIA personnel Agee could not publish any writing about the CIA in the future without first submitting it to the Agency for review. He threatened to cite Agee for contempt if he violated the order.
At the same time, however, Gesell refused to grant the government's request that he confiscate the profits Agee had made from the two books he had already written in violation of his agreement.
Why did he so rule? Halperin's `Organizing Notes' reported: `The Judge based his refusal on evidence presented by the American Civil Liberties Union's Project on National Security [chaired by Halperin] which supported Agee's claim that the government selectively prosecuted only its critics for violating CIA secrecy agreements.'
The July-August '81 issue of Halperin's `ON' featured a page one attack on the Supreme Court for upholding the right of the Secretary of State to withdraw Agee's passport.
Halperin's CPR staged a forum in Washington on May 27, 1982, entitled: `Covert Operations Against Nicaragua.' A publisher's order form for Agee's `dirty Work' and `White Paper? Whitewash!' was included in each press kit distributed at the forum.
Finally, Halperin campaigned hard against all bills introduced to criminalize exposures of the identities of intelligence personnel, though the Supreme Court had held (in its Agee passport decision) that such activities `are clearly not protected by the Constitution.'
Halperin not only testified against the bills but induced others to protest their enactment. `ON' for 7-8/81, for example, noted that his CPR had `coordinated' a letter signed by 110 law professors addressed to members of the House Intelligence Committee and Senate Judiciary Committee urging the amendment of H.R. 4, the intelligence agent identities protection bill that eventually became law, in a manner desired by Halperin (i.e., to make it ineffective) and, the previous September, had coordinated a similar letter signed by 50 professors.
What one newspaper described as `a festive outdoor ceremony' was held at CIA headquarters in Langley, Virginia, on June 23, 1982 where President Reagan signed into law the Intelligence Agent Identities Protection Act (H.R. 4), which provides for fines and prison terms for those who deliberately disclose the identities of U.S. intelligence personnel. The President praised CIA employees on the occasion as `heroes of a grim twilight struggle.' The last two paragraphs of the news account read as follows:
`The American Civil Liberties Union has criticized the law as a `clearly unconstitutional infringement on the right of free speech.'
`Morton H. Halperin, Director of the ACLU's Center for National Security Studies, said the organization would provide legal assistance to `those whose ability to speak or write is threatened by this legislation or effort to enforce it by the Justice Department.' (Washington Post, June 24, 1982)
In June 1981, upholding the right of the Secretary of State to lift Agee's passport, the Supreme Court reviewed some of the well-publicized facts about him that should be kept in mind as Halperin's generosity toward Agee and his apparat is considered:
At a 1974 London press conference, Agee announced his `campaign to fight the United States CIA wherever it is operating' and his intention `to expose CIA officers and agents and * * * drive them out of the countries where they are operating' while, in the U.S., he worked `to have the CIA abolished' (Agee's words).
A Federal District Court had found on Agee's part `a clear intention to reveal classified information and to bring harm to the agency and its personnel.'
Agee's exposures `have been followed by * * * violence against the persons and organizations identified.' In 1974, prior to the Welch murder, Agee's chief collaborator exposed CIA personnel in Jamaica at a press conference there. Within a few days, the home of the CIA station chief was raked with automatic gunfire and gunfire also erupted when police challenged men approaching the home of another identified CIA officer.
Reviewing these and other facts, the Supreme Court found that Agee's activities not only presented `a serious danger to American officials abroad and serious danger to the national security,' but also `endangered the interests of countries other than the United States--thereby creating serious problems
for American foreign relations and foreign policy.'
As noted earlier, Agee did not do his damage to the U.S. alone. No single person could do that. He needed his co-workers and colleagues at CounterSpy and Covert Action Information Bulletin to help him. He needed more than that--the assistance of every other person who aided him in any way. The Supreme Court's findings thus apply not only to Agee, but also every worker for those two publications and, it would seem to many, to others who did not support him quite so directly, but who nevertheless helped him in very real and important ways--people like Morton Halperin.
Speaking through others, Halperin has flatly denied that he has ever aided or abetter Philip Agee in any way.
But what are the facts?
Agee wanted support for the various fronts setup by the Organizing Committee for a Fifth Estate, CounterSpy's publisher, to promote both OC-5 and the magazine. Halperin gave him that by serving on the speakers bureau of PEPIC. More than that--presuming he lived up to his affidavit of the time--Halperin gave every penny he earned from his speeches to PEPIC.
Agee wanted favorable reviews of his first book. Halperin gave him one in the very first issue of `First Principles.'
Agee wanted favorable notice given to both of his principal agent exposure instruments--CounterSpy and the Covert Action Information Bulletin. Halperin gave him that repeatedly in both `First Principles' and his `Organizing Notes.'
Agee wanted someone to represent him in his court fight to retain the ill-gotten profits from his first two books. Halperin gave him that through his Project on National Security and Civil Liberties.
Agee wanted someone to absolve him of blame for the terrorist assassination of CIA station chief Richard Welch. Halperin gave him that over and over again--in speeches, testimony and writing.
Agee wanted someone to dispute the statements of many present and former CIA officials that he and CounterSpy rather than the CIA and Welch himself were responsible for Welch's death. Halperin gave him that repeatedly.
Agee wanted some testimony that would help him fight deportation from Great Britain and Halperin gave him that as well.
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David Truong (Truong Dinh Hung) and Ronald L. Humphrey were arrested in January 1978 on charges of espionage, theft of U.S. government documents and conspiracy to injure the defense of the Unite States.
Humphrey, United States Information Agency communications watch officer (a position giving him daily access to sensitive cable traffic), had been taking classified government documents, the indictment said, and turning them over to Truong who, through couriers, had been delivering them to North Vietnamese officials in Paris. Hanoi's Ambassador to the UN and several other North Vietnamese officials were named as unindicted co-conspirators, asked to leave this country--and eventually did so.
Truong, son of a wealthy lawyer and `peace' politician in Saigon (later retired in comfort in Hanoi), came to the U.S. in 1965 to study at Stanford. After getting his degree, he moved East, first to Cambridge and then to Washington where he became active in the `anti-war' movement, established a U.S.-Vietnamese `reconciliation' front, lobbied `peace' Members of Congress and their staffs (as Halperin did) and gained considerable influence on the Hill.
Truong and Humphrey were tried in May 1978, convicted, sentenced to 15 years in prison, and began serving their terms in January 1982 after an appellate court and the Supreme Court rejected appeals from the trial jury's guilty verdict.
Their unsuccessful defense claim was that the documents Humphrey gave Truong were not really sensitive, contained no more than diplomatic chit-chat and could not harm the United States.
Halperin supported their claims, testifying in their defense at the trial on May 10. He doubted that some of the cables had been properly classified; others, he claimed, were in no way related to the national defense, and he said `no information' in any of the cables the pair had given the Communists `could injure the United States or be advantageous to the Vietnamese.'
He took this position despite the fact that on March 2, 1978, a week earlier, the court had taken a completely contrary position, issuing a strict protective order `to prevent the disclosure or dissemination of the documents listed in Appendices A and B, attached thereto * * * or any portion thereof * * * or of the information contained therein.
In addition, a string of U.S. diplomatic and intelligence officials contradicted Halperin's testimony.
Halperin was eager to aid Truong and he did not wait until May 10, the day he testified, to begin his assistance. In his `Pint of View' for the April 1978 `First Principles', he attacked the Carter Administration Justice Department for bringing the indictment (though the trial had not yet begun and he could not have known the essential elements of the case) and with tortured legal argument assailed the presiding judge for his pretrial rulings in favor of the government. Keep in mind, Mr. Halperin is not a lawyer.
Next, in another `Point of View' in the June 1978 `First Principles', Halperin assailed both the jury for its guilty verdict and the Carter Administration, saying the case `raised some very serious questions' about whether it `understands what it is doing.'
Finally, in the September `78 `First Principles' he featured a `Guest Pint of View' which also assailed their conviction. It was written by Daniel Hoffman, Halperin's co-author of `Top Secret: National Security and the Right to Know,' who compared the Humphrey-Truong trial to that of the dissident Scharansky in the Soviet Union.
Later, in its June 1981 issue, Halperin's `First Principles' initiated a Letters to the Editor column. The one and only person who had a letter published in the first column was David Truong who, of course, attacked the US justice system, writing of `the government's evident misbehavior' and the `glaring denial of due process' in his trial.
`Organizing Notes' of Halperin's CPR was as assiduous in trying to help Truong as was Halperin himself in `First Principles.' The issue of January-February 1979, for example, reported that Truong's attorneys had filed an appeal brief listing 14 reasons why the guilty verdict should be set aside and that it would be argued before the appellate court sometime in the spring; `Contact Vietnam Trial Support Committee,' it said and gave the address and telephone number of the group that had been set up in Washington to raise funds for, and otherwise assist, Truong fight his case.
The July-August '80 issue of `Organizing Notes' reported that on July 17 a panel of the Court of Appeals for the Fourth Circuit had declined to review the lower court verdict and that Truong's lawyers would move for a rehearing before the full court: `For further information: Vietnam Trial Support Committee,' again followed by the group's Washington address.
The July-August '81 issue of `Organizing Notes,' the periodical published by Halperin's CPR, reported that to raise funds for Truong's defense, limited edition silkscreen posters, each one signed and numbered by the artist, were available for $15 each in quantities up to 100, and $10 each for 101 to 405 copies (plus $1.50 each for postage and handling): `Vietnam Trial Support Committee, followed by the committee's address and telephone number.
`Truong Case Raises Important Physical Search Issues' a January-February '82 issue article headline in `Organizing Notes' announced. The article ended with an ironic paragraph: `As we go to press * * * The Supreme Court on January 11 denied David Truong's petition for a writ of certiorari, thereby precluding the possibility of further review of the case. As such, Truong's 1978 conviction will stand.'
Not only the Court of Appeals, but in effect the Supreme Court, had rejected Halperin's specious arguments in defense of Truong.
A final note: Truong was free on $250,000 bail pending the outcome of his appeal from conviction when, in February 1979, Halperin's CPR held a party in Washington to celebrate the release the `The Intelligence Network,' a propaganda film directed against the CIA, FBI and other US intelligence agencies. David Truong showed up at the celebration. Halperin smiling, posed with him for a press photo.
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The so-called `Pentagon Papers' were a 47-volume, 2 1/2 million word collection of government documents relating to the Vietnam War assembled per a June 1967 directive of Secretary of Defense Robert McNamara by a team of about three dozen Defense Department employees, including Halperin, then a deputy assistant secretary. Completed in 1969, its contents were classified TOP SECRET-SENSITIVE by Leslie H. Gelb, who directed the project, Halperin and two McNamara military assistants.
Two former Defense and Rand Corporation employees, Daniel Ellsberg and Anthony Russo leaked copies of 43 volumes of the compilation some time later with the result that in mid-June 1971, while the U.S. was still fighting in Vietnam, the New York Times, Washington Post, and Boston Globe began publishing excerpts from them.
Former President Lyndon Johnson termed the leak `close to treason.' General Hyman and Lemnitzer, Chairman of the Joint Chiefs of Staff early in the war and later Supreme Commander of NATO, denounced it as `a traitorous act.'
The Nixon Administration had twice denied requests from Senator Fulbright (D-Ark) for copies of the Papers on the basis of Defense Department reviews which concluded that `the material, in our judgment, was of such a high degree of sensitivity that it should not be transmitted outside the executive branch.' The DOD review of Fulbright's second request was continuing just a week before the Times began publication on June 13.
The government immediately asked for a court injunction, saying further publication would pose `a grave and immediate danger to the security of the United States.' A temporary stay was granted on June 27, but the Supreme Court reversed it three days later, ruling 6-3 that, in light of First Amendment rights, the government had not met the `heavy burden' of justifying prior restraint.
Ellsberg and Russo, the admitted purloiners of the Pentagon Papers, were indicated on 15 counts involving violations of the Espionage Act, stealing government property, and interfering with the control of classified information.
Halperin traveled to Los Angeles where the trial was held and remained for five months, reportedly as leader of a team of about 35 left-wing activist and lawyers assembled to work for their acquittal (Ellsberg's chief defense counsel was the late Leonard Boudin, a leading member of the National Lawyers Guild and, according to a Federal court exhibit, a former member of the Communist Party's National Committee; also, of course, the father of Kathy Boudin, convicted in the 1981 terrorist Weatherman Nyack, N.Y. Brinks robbery-murders.
Halperin also testified as a defense witness for the pair, making the fantastic claims that, in his view, the Pentagon Papers were not government documents but the personal property of himself, Gelb and former Assistant Secretary Paul Warnke; that they had been improperly classified, and contained no information that would benefit an enemy of the U.S.
He was flatly contradicted on every point by other witnesses. Gelb, for example, testified, `I did not regard the documents as my personal property.' FBI agent Earl C. Revels testified that when he first interviewed Halperin about the leak, Halperin had told him that he, Warnke and Gelb had delivered a 38-volume set of the papers to the Washington office of Rand as agents of the U.S. government; also that he had twice refused to grant Ellsberg access to the study, but had finally done so though he feared Ellsberg might be `indiscreet' in handling it. In addition, several high-ranking military officers pointed out how hostile powers could benefit from information in the Papers.
The chief prosecutor, David Nissen, charged during Halperin's March 23, 1973 testimony that Halperin had himself violated security regulations by taking classified documents when he left government service--a charge later affirmed in the brief submitted to a Washington court by the Carter Administration in 1978.
The question of Ellsberg-Russo's guilt or innocence was not settled by the court. A number of factors developed which convinced the trail judge that separating legitimate from illegitimate evidence was `well-nigh impossible.' He therefore dismissed the case.
One of the complications was that Ellsberg, a guest in Halperin's home for a time during the period a warrantless national security wiretap was in place on Halperin's phone (May 1969-February 1971), had been overhead on the tap 15 times and the government took the position that, for national security reasons, the contents of the taps could not be disclosed.
The previously-mentioned Supreme Court decision denying the government request for a ban on further publication of the Pentagon Papers provided telling commentary on Halperin's testimony in the Ellsberg-Russo trail. Appended are excerpts from that decision which clearly indicate that a majority of the justices were convinced that--contrary to his testimony--the Papers contained sensitive information the release of which would warrant prosecution under security statutes.
Justice Stewart (one of the majority), with Justice White (also of the majority) concurring, noted that the Court has been asked to prevent publication of material the Executive Branch `insists should not, in the national interest, be published.' He wrote: `I am confident that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate and irreparable damage to our Nation or its people,' so he had to join the majority in denying an injunction.
Justice White, with Stewart concurring, said that after examining the materials the government said were `the most sensitive and destructive' he could not deny that revelation of them `will do substantial damage to public interest. Indeed, I am confident that their disclosure will have that result * * * because the material poses substantial dangers to national interests and because of the hazards of criminal sanctions, a responsible press may choose never to publish the more sensitive materials * * * a substantial part of the threatened damage has already occurred. The fact of a massive breakdown in security is known, access to the documents by many unauthorized people is undeniable.'
Termination of the ban on publication by this Court, White continued in a blunt warning, `does not mean that the law either requires or invites newspapers or others to publish them or that they will be immune from criminal action if they do * * * failure by the Government to justify prior restraints does not measure its constitutional entitlement to a conviction for criminal publication.'
`The Criminal Code contains numerous provisions potentially relevant to these cases * * * I would have no difficulty in sustaining convictions under these sections.'
Justice Marshall: `At least one of the many statutes in this area [control of sensitive information] seems relevant to these cases.'
Chief Justice Burger, a dissenter, deplored the haste with which all proceedings in the case had been held: `We do not know the facts of the cases. No District Judge knew all the facts. No Court of Appeals Judge knew all the facts. No member of this Court knows all the facts * * * because these cases have been conducted in unseemly haste * * *'
`To me it is hardly believable that a newspaper long regarded as a great institution in American life (the New York Times) would fail to perform one of the basic and simple duties of every citizen with respect to the discovery or possession of stolen property or secret government documents. that duty, I had thought--perhaps naively--was to report forthwith to responsible public officers. This duty rests on taxi drivers, Justices, and the New York Times. The course followed by the Times, whether so calculated or not, removed any possibility of orderly litigation of the issues * * *'
`The consequence of all this melancholy series of events is that we literally do not know what we are acting on * * * the result is a parody of the judicial system * * *'
`I should add that I am in general agreement with much of what Mr. Justice White has expressed with respect to penal sanctions concerning communication or retention of documents or information relating to the national defense.'
Justice Harlan, also dissenting, with the Chief Justice and Justice Blackmun joining, cited chapter and verse of the haste mentioned by the Chief Justice and said: `With all respect, I consider that the Court has been almost irresponsibly feverish in dealing with these cases.'
Justice Blackmun, the third dissenter, said he, too, was in `substantial accord' with what Justice White had said about criminal prosecution. He added: `I strongly urge, and sincerely hope, that these two newspapers [the New York Times and the Washington Post] will be fully aware of their ultimate responsibilities to the United States of America * * * I, for one, have now been able to give at least some cursory study not only to the affidavits, but to the material itself. I regret to say that from this examination I fear that Judge Wilkey's statements [expressed in his Washington Post decision] `have possible foundation. I therefore share his concern. I hope that damage has not already been done. If, however, damage has been done and if, with the Court's action today, these newspapers proceed to publish the critical documents and there results therefrom what Wilkey feared as possible, `the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate,' to which list I might add the factors of prolongation of the war and of further delay in the freeing of United States prisoners, then the Nation's people will know where the responsibility for these sad consequences rests.'
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END