When Are Secrets Best Kept?

Two national security cases underline an old dilemma

National security and the Bill of Rights, it seems, are almost naturally at odds. How can the Government plug leaks and stop the press from publishing its secrets without muzzling free speech? How can it take any kind of national security case to court without spilling secrets at a fair and public trial? The answer has often been that it cannot. But last week the Government was back trying in two cases, one involving the Progressive magazine, and the other former FBI Acting Director L. Patrick Gray III. Both cases illustrate the difficulty of keeping secrets in an open society.

A fortnight ago, Government lawyers got a ten-day restraining order to stop the Progressive and its editor, Erwin Knoll, from publishing an article describing how an H-bomb is built. At a hearing scheduled for next week, they will argue for permanently prohibiting publication. The Government's case appears strong: the article is accurate enough, say Government experts, to help other countries develop the bomb. And the 1954 Atomic Energy Act specifically bans dissemination of secret information about atomic weapons. But if the Government wins, it will be the first time a U.S. court has stopped the press from printing an article because it risks injuring the national security.

That is so even though laws have been on the books since 1917 banning intentional disclosure of defense secrets that could harm the U.S. The laws are so broad and so murky that in theory they could be aimed at leakers and the press. In practice, however, they are used only on spies. Part of the reason is the First Amendment. But prosecuting leaks also runs a different risk: confirming that the leaked information is true, and disclosing even more secrets at a trial. This dilemma has vexed the Government for years in conventional espionage cases, but it drew little public attention. That is, until the Government began trying to prosecute its intelligence officials.

In the early and mid-'70s, a series of scandals rocked the intelligence establishment. The CIA and FBI were accused of engaging in illegal covert activities at home and abroad under the guise of national security. Out of congressional investigations came several indictments: Gray and two other FBI officials. Edward S. Miller and Mark Felt, were charged with conspiring to authorize illegal break-ins to track down members of the radical Weather Underground; former CIA Director Richard Helms and a pair of ITT officials were charged with lying to a Senate subcommittee in 1973 about plotting to overthrow Chilean President Salvador Allende Gossens. But in late 1977 Helms was allowed to plead no contest to watered-down charges that he misled the Senate, and this winter the Justice Department simply dropped charges against the ITT officials. Now it appears that the FBI case is also in danger of aborting. Why? National security. Lawyers for the accused insist that their clients cannot get a fair trial unless sensitive Government secrets are brought out. Rather than disclose them in court, the Justice Department has been avoiding trial altogether.

Senator Frank Church, who chaired the Senate subcommittee in 1973, harshly criticized the department's decision not to prosecute the ITT case. He called the national security claim "the same threadbare excuse so often used by the Nixon Administration to cover up its crimes." Others inveighed against "gray-mail," a lighter shade of blackmail that defense attorneys legitimately or illegitimately use to try to force the Government to reveal information that it wants to keep secret. But the Government did try to get around the graymail defense in the ITT case by asking the judge to rule out irrelevant national security information privately in his chambers before going to trial. The judge refused, on the grounds that he lacked authority.

The Senate criminal justice subcommittee now wants to give courts that authority, with a bill that would require pretrial in camera hearings on the relevance of intelligence information. It is not a perfect solution-the Government must still decide whether to prosecute if the judge allows secrets to be disclosed.

In any event, the bill will not come in time to help the Government in the FBI case. Defense attorneys want to bring out classified information that might justify their clients' covert operations (the Weatherman, they claim, was dealing with Palestinian guerrillas, Cuba and North Viet Nam). So far the Government has refused to hand over the information. Last week the judge agreed to try Felt and Miller separately from Gray, partly because they claim that they acted on Gray's orders. It appears that Felt and Miller will go to trial, but since prosecuting Gray would bring out very sensitive national security information, the Justice Department now concedes that the ex-director may never be tried.

The pervasiveness of graymail is shown by a secrecy and disclosure subcommittee report last year that pointed out at least 30 cases that were never prosecuted to avoid further disclosure at a public trial. "People who are somehow connected with intelligence information have something like a license not only to kill, but to lie, steal, cheat and spy," testified former Deputy Solicitor General Philip Lacovara. "There is not very much that can be done about it."

Congress at least seems to be in the mood to try. Pressure is growing for an overdue revision of national security laws. Whether Congress can better balance the inherent conflict between national security and the rights of fair trial and free press remains, however, to be seen.

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