 I'd like to begin by thanking the co-sponsors of this conference and this awards banquet, Michael Grossberg, Executive Director of the Free Press Association, and Andrea Millen-Ritch, of Les Eh Fair Books, a Division of Libertarian Review Foundation. Why don't both of you stand up and let's give them both a round of applause. It's been quite something I know for both of them to have lived through this, and I think it'll be good. Our first order of business for the evening is to listen to Nat Hentoff. Frankly, I would rather listen to Nat Hentoff talk about jazz, on which he is one of the best informed and most insightful writers in the country. Actually, I'd rather listen to jazz than to listen to Nat Hentoff or anybody else talk about anything. But things work out in this country that people who are concerned about jazz or music or sports or various other things also find that there are other issues going on in our society that somehow seem to demand their attention and issues that might not be addressed if those who might rather be listening to or thinking about or talking about or writing about jazz don't address them. And our major speaker this evening is one of those people who I believe has undertaken to write about things that need to be written about rather than sometimes the things that he might rather be writing about. Nat Hentoff is a syndicated columnist, a noted First Amendment expert, writes for The Village Voice, The Washington Post, other newspapers. He's the author of several books, including The First Freedom and Does Anybody Give a Dam, and perhaps most interesting, Jazz Is. His subject this evening is National Security versus the First Amendment, the Samuel Morrison case. Ladies and gentlemen, Mr. Nat Hentoff. As Charlie Parker said, but that's another time, a few nights ago I was interviewing Helen Thomas of UPI and I asked her in view of the increasing pressure to stop leaks by intimidating and eventually imprisoning members of the press because that's where it's going quite logically. You know, I meant, for example, the special FBI squad we now find out is organized to trace the sources and all the recipients of leaks. The Official Secrets Act that we have never had in this country because Congress has consistently refused to enact an Official Secrets Act, but which we are going to have eventually, seems to me, as the Samuel Larring Morrison case moves through the courts, more of which are not. And it's not only the Reagan administration, although this administration as Walter Karp is very ably documented, has been more energetic and more vehement in its pursuit of closing the avenues of information than any other administration in contemporary times. But it would be any administration now. I mean, I expect if he's nominated to vote for Mario Cuomo, but I have no illusions that he has any more respect for the spirit or the letter of the First Amendment than either, let us say, the Chief Justice or the new Associate Justice. And that's very little respect indeed. I asked Helen Thomas, as the heat gets more intense, will the publishers, the editors, and the reporters cave in? Now she's been in Washington an awfully long time. She said, well, maybe indeed probably the smaller newspapers, the smaller magazines, the independent broadcasters, an independent broadcaster, somebody who's not been able to hook up to a network. Maybe they will succumb, start censoring themselves, but not the big ones. They will not be intimidated. They'll not be conned by the invocation of the dread term national security. So I asked her if she remembered the Glomar Explorer. How many of you remember the Glomar Explorer? Quite a lot, I'm glad to see. Nonetheless, I'm going to tell you about it anyway, because in Henry V, after the Battle of Agincourt, as I recall, Henry V said to his brave band of men, that what we did here today is something that should be remembered, commemorated throughout the future history of England on, I think, St. Swithin's Day, whenever that is. Great St. Christopher. That sounds better. That sounds like Lawrence Olivier, right. And I long believed, at least since this happened, that what happened to the Glomar Explorer case should be repeated to journalists, by journalists, at least once a year, forever. It is, it seems to me, our chief disaster in terms of our fight for the public's freedom to know. The Glomar Explorer was 618 feet long. It cost $200 million of taxpayers' money to build. It was built by Howard Hughes in 1973 under disguise for the Central Intelligence Agency. And the whole cost of the one project, this phenomenon everyone on, was a half a billion dollars. The project was called Project Jennifer, who was a secret attempt to raise a Soviet submarine that had sunk in the Pacific in 1968, with nuclear warheads and code books that the CIA wanted, and a number of Russian corpses that the CIA maybe wanted, they weren't sure. The salvage attempt was made in 1974 at a depth of three miles. And they blew it. Well, they half blew it. They brought up half the submarine. Is there any way of deflecting that light? I guess not. I'm a Luddite. I don't even use these systems. Ah, that's a great help. Thank you. The problem is it blinds you for a while. They brought up half the submarine. And they left behind some of the codes, all of the corpses. And they wanted to go back and get them again. The story was not as secret as the CIA had hoped. A number of reporters were out of the story, although it was top secret times a hundred. Cy Hirsch naturally was onto it. Jack Nelson and some other people at the LA Times were onto it. And at that point, William Colby, who was then head of the CIA, made a journey, a tour, if you like, of the offices of the proprietors and editors in chief of our free press. And he told them, among other things, that secrecy was still imperative if the Glomar was to finish the job, as if the Russians didn't know. The Russians had a trawler about two miles away overseeing the whole operation. And he said that breaking the story in any case would greatly embarrass the Russians and poison our foreign relations, which, of course, until then had been very serene and pure. And so the New York Times, the Washington Post, all of the networks, including the public broadcasting system, all of the news weeklies, the LA Times, the Washington Star, they all agreed in the interest of responsible journalism to censor themselves. And that for 39 days, the nation's most responsible founts of journalism, the elite of the free press, imposed prior restraint on themselves. One Monday morning, I got a call from a person I know in Washington. He said, I got a story for you. I am absolutely furious at what your colleagues have been doing. Would you be interested in running it? I said, I don't know what it is. He said, never mind. I know the village voice will run anything. So I said, look, I mean, look at it. That afternoon, by courier indeed, I received the best opening gambit on a story I've ever had, photographs, leads, cross leads, phone numbers, everything. And I called up the editor of the voice and we arranged to have a lot of space in the paper, which went to bed on Tuesday, Tuesday morning. But we can sometimes drag it on until Tuesday afternoon. That night, however, Jack Anderson deprived me of the Pulitzer Prize. Not that I would have gotten anyway for that kind of story. He broke it on mutual radio on the principle that the government does not own the news. And of course, the next morning, all the papers that had suppressed it had the story. The story they'd been hatching for some time. When it was over, I wrote a series of columns and I asked the reporters who had had the story why they had allowed themselves to be part of that conspiracy of responsibility that was actually, of course, just the opposite. And I said, why didn't you, I mean, you people like me, like all of us in this business, we thrive on leaks. You couldn't write the story. They wouldn't let you write the story. Why didn't you leak it? You didn't want to leak it to the Village Voice, leak it to Rolling Stone, leak it to the Rocky Mountain Tines. And some of the folks addressed in that column were very angry at me. How could they possibly betray their editors, their publisher, and give a story to the competition? Only one journalist, this is about three years later, came up to me. We were doing a broadcast. And he said, you know that column you wrote? You were right. That's what they should have done. His name was Carl Brinstein. One of the interesting footnotes about that story was that it turned out there was a program at the time called Inside Story about the press on Mutual. And Jack Nelson, who was, I guess, the angriest of all the people at me, said on that program that Colby, when he visited the offices of the LA Times, said that he did the same thing I found out elsewhere. Every time he went to a responsible place, he would tell them of all the other responsible places he had locked up. And he said, you know, once we get all these people, everybody will want to come in. That is, all the responsible people want to come in because they don't want to be irresponsible. And then he said, of course, the crazies. The crazies might get the story. He meant Rolling Stone, which was then pretty crazy. It's unfortunately very responsible now. Rolling Stone or some other non-establishment news medium would pick it up. But that wouldn't make any difference because if all you responsible people sit on the story, they won't believe what those people write. And that's the way it went. And it's something to think about in the years ahead. What does responsible mean? Responsible to whom? And where are our loyalties? To the people who pay us? Or to the people who read us? Well, we always say on the 4th of July, it's the people who read us. But that's just the 4th of July. Now, back to the threat to the press from the state rather than from ourselves. In 1971, the Pentagon Papers case, that was considered a triumph for the press. No prior restraint is constitutionally possible, even when the government proclaims national security. But if you go back and read those opinions, and there were a lot of opinions, several justices said that if Congress had enacted a law prior to this case, a law criminalizing the leaking to the press of classified material, they might as well have come out on the other side. In fact, one or two said they would have. Now, as I said, Congress has never passed such a law. Despite the urgings of most administrations, a law criminalizing leaks to the press and the publishing of those leaks. But this administration is getting closer to getting such an edict from the courts. And that brings us, of course, to the case largely forgotten now, largely forgotten while it was going on, of Samuel Loring Morrison. A short amount of history. In 1917, the First Amendment was on the ropes, as it often is. Theodore Roosevelt spoke for much of the country when he said, the clergyman who does not put the flag above the church had better close his church and keep it closed. So much for the establishment closed. And Woodrow Wilson, a month and a half after war was declared, urged Congress to give him power under the Pending Espionage Act to censor the press. Such action, he said, was, quote, absolutely necessary to the public safety, unquote. Yet, even then, and this country was in a state of hysteria in 1917, even then, the members of Congress turned down the only president they had. As it worked out, the Espionage Act was more than sufficiently broad to inflict huge wounds on freedom of speech in those years. But the press had been largely sheltered by Congress. Then in 1950, when the Espionage Act was being amended as part of the larger Internal Security Act, Senator Patrick McCarron, never known to be soft on espionage, never known, I think, to know who James Madison ever was, inserted a proviso which not only guaranteed the press would be free of censorship, but also said the statute could not be construed to limit freedom of the press or speech in any way. It's 1950. Since 1917 then, with only two exceptions, the Espionage Act has not been used by the government to prosecute the leaking to the press rather than to foreign intelligence agents of classified documents relating to national defense. One exception was the prosecution of Daniel Ellsberg and Anthony Russo for adding the Pentagon papers to the open shelves, but that case was dismissed because of government misconduct. That is, Gordon Liddy, who is now very hot in the lecture circuit, and his colleagues broke into the offices of Ellsberg psychiatrist and thereby caused the judge presiding over that trial to decide that the whole thing had to be thrown out. The second exception, which so far has resulted in a first period victory for the Justice Department, was the recent conviction under the Espionage Act of a former Navy intelligence analyst, Samuel Loring Morrison. What he did was he leaked three spy satellite photographs, each classified secret, of a nuclear-powered Soviet aircraft carrier under construction in a Black Sea shipyard. Morrison has also been convicted of having unauthorized possession of other documents classified secret, but the main charge are those photographs. Morrison is a hawk. Motivation doesn't matter here, but just for background. Morrison felt that the president had been insufficiently attentive to the needs of the Navy in terms of financing, and he thought by leaking these photographs, he would make Reagan, or at least the people who act as president, under him, aware of the need for more funds for the Navy. So Morrison had been working part-time for Jane's Fighting Ships, which as you know is a very prestigious British publication, and the leaked photographs were sent to Jane's Fighting Ship, and they appeared in a companion journal, Jane's Defense Weekly. He figured quite correctly that if they appeared there, the wire services here would pick them up, the New York Times would pick them up, the Washington Post would pick them up, that's true, even the Village Voice picked them up. Shows you how pervasive this thing was. The Justice Department, wielding the Espionage Act of 1917, prosecuted Morrison, claiming that the Russians will add to their knowledge of our spying capacities from the published photos. One of the witnesses for Morrison at the trial, not that it didn't him a bit of good, was a former CIA official, Ronald Roland S. Inlow, who's an expert on spy satellites, who was in charge of checking the capabilities of the spy satellites, and he said, they already know all they have to know about this particular spy satellite. In fact, they bought the knowledge. I think they gave some really piddling sum, something like $3,000 to a CIA guy three years before then, for a copy of the instruction book. In any case, the Justice Department insisted that Morrison's crime was the leaking to unauthorized people of material that the United States government has classified secret. And despite prosecutorial shiftlessness in the past, you get this as obligatory boilerplate in stories like this, that the press has never been prosecuted for accepting leaks of classified material, et cetera, because it's hard to prove and we're, despite that, this sort of thing, this Justice Department said must finally be stopped. No exceptions. And the Justice Department said in response to the motion for dismissal in the case, if a defendant, such as Morrison, willfully transmits photographs relating to the national defense to someone who is known by the defendant, not to be entitled to receive it, the defendant has violated the law no matter how laudable his motives. Even if Morrison had been inspired to, quote, expose obvious wrongdoing in high official circles, he would be just as guilty, unquote. So in the age of Reagan, the definition of espionage now includes also whistleblowing. The case is now on appeal. They haven't even had oral arguments yet. It's going up to the Fourth Circuit, which is not one of the more enlightened circuits in the United States. In fact, as the President keeps appointing more circuit judges and district judges, I can't think of any circuit that's one of the more enlightened circuits in the United States. My own guess here from a clubhouse lawyer is he's bound to lose in the Fourth Circuit, no matter the merits of his case. If he then loses in the Supreme Court, and I'm not especially saying when up there either, the government will finally have a way to freeze the press's sources in so-called national security matters. And eventually, journalists themselves may be persuaded. I mean, I remember when the Ural Caldwell case broke, it was the Bronzeberg decision, but Earl was the guy we were interested in in New York and people were saying to hell with them, we're not going to release, we're not going to reveal our sources, we'll go to jail. And somebody said, how many times? Journalists themselves may be persuaded to let only the government decide just what on matters of national defense can be printed. George Lardner, Jr. of The Post, who did a superb job of reporting on this case, the only people who gave this much attention than I saw was Lardner and Tony Lewis in his column in the New York Times. Post reported that, I mean, Lardner reported that Justice Department officials do not consider the press exempt from prosecution as receivers of unauthorized leaks involving any of the hordes of documents classified as secret. And now as a logical extension of that, you get the information that there is an FBI squad devoted entirely to going after who gave the leaks, who took them, who published them. A few long sentences in prison for reporters and editors, it is possible to speculate, could prod other journalists to reassess their news gathering priorities. The people's right to know may be put in limbo. Samuel Larring Morrison's lawyer is pointed out in one of the court papers. The government is asking this court to construe the statutes at issue here as general anti-leak statutes, despite the fact that Congress repeatedly has refused to enact such a law. The government is therefore asking this court to go beyond its constitutional limits and make a legislative decision that properly can be made only by Congress. Well, you can say that Edwin Meese is not flexible. He may be opposed to judges who function as legislators, but there are exceptions, like in the matters of national security. Now, I mentioned Tony Lewis who has been very, very diligent on these things, but even he sometimes underestimates the extent of what has already happened. He had a column last August in which he noted that in England, the courts had just held that judges may forbid newspapers to reprint already published information about the government. Judges may do so even when what they suppress is a charge of official wrongdoing or criminality. Judges may do so although Parliament has not passed a statute laying down this particular draconian method of silencing the press. And Tony Lewis said, well, that's the kind of thing we go on the way we're doing could happen here. It's happened here. We have a statute as a matter of fact. Do any of you remember the Intelligence Identities Protection Act? That passed in 1981. It was aimed at Philip Agee and Covert Action Information Bulletin. The bill passed both houses overwhelmingly, both chambers. And the way it goes is that anyone publishing information that could lead to the identification of Covert Intelligence Agents, CIA, FBI, whatever, can be charged with a crime even if the sources are entirely unclassified, even if the disclosure is of criminal behavior by those agents. Also included are all former intelligence agents and past and present informants. So if you were to write that a murdering dictator has made various arrangements with the CIA, including the passing on of information about revolutionary dissidents in his land, you are the criminal because you've exposed a CIA informant. Ted Weiss on the floor noted that if the law had been on the books during Watergate, journalists revealing the CIA connections of the first troop of Watergate burglars could have been subject to a prison term of up to three years. Now, that law has not been operative since then. That is, so far as I know, nobody's been prosecuted under it. And that's because, thanks in large part to Joe Biden, who I find increasingly is, despite his bravura, I don't know why I say despite, but it seems to put some people off as a very passionate civil libertarian in some areas. He worked it out, so the legislative report on this bill has been very narrowed. Doesn't mean the bill can't be executed, especially not with all those Reagan appointees coming down below. Now, the thing about the Morrison case that was particularly, well, the case is bad enough in itself, but what struck me as particularly dismaying was the reaction of the press. On the day he was convicted, I'm a member of the steering committee of the reporters committee for freedom of the press, but nobody ever asked me to drive the bus because I'm in New York and they're in Washington. So the first I knew of this was reading that the New York Times, our director, our executive director, Jane Curdly, tells the New York Times, we don't really have a formal reaction to his conviction because we've never really seen this as a First Amendment case. He was a government employee and he was subject to the rules of his employer. That was bad enough. Then a member of the steering committee, Jack Taylor of the Dallas Times Herald, wrote a round robin letter to everybody on the committee and he said he wouldn't approve of supporting Morrison with an amicus brief because such support, quote, could be misinterpreted by the general public and would not be in the best interest of either the reporters committee or the press in general, unquote, why? Well, Morrison had political motives for the leak. Now we start going through the motivations of whistleblowers or leakers and maybe had mercenary motives. I think he got paid something like, boy they pay lousy rates in England. I think it was about $87 or something. And, and said Taylor, Morrison was a government employee, not a journalist. If he had been a journalist, says Taylor, even if he had, presumably even if he were mercenary and whatever his motives were, if he were a journalist, that would be quite a different picture. And the same result all across the board. I know the lawyers for ASNE and ANPA and all those folks and I call them up and nobody at the time was willing to come in to support Morrison. Same reason he isn't a journalist. Therefore, we don't care cause we're okay. And I went to a man I respect a lot, Lyle Deniston, who covers the Supreme Court for the Baltimore Son and the American Lawyer. If you don't get the American Lawyer for his reports of the oral arguments in the Supreme Court, you ought to. It's really like Charles Dickens come back to us. I asked Lyle what he thought of this whole thing and he said, well, look, the news industry has been taking dives lately. Like caving into the government on giving up outtakes of television coverage of the hijacked TWA plane in Beirut. And the industry feels that the less controversial the press is, the more sympathetic the courts will be to its rights. And I got that again and again from people I know. Like some of the people who work for such starships as CBS or the New York Times. They figured, well, well, you know, worst possible case, maybe some minnows at the nation or in these times could be scooped up, but surely household names like Morley Safer could be immune from prosecution by the government. They may be right. This is hardly though the first time the news industry has thought more of protecting itself than of helping pariahs with something to tell the citizenry that the government once kept secret. I expect you all remember the case of the Progressive in 1979. The government prevented it from printing an article on the secret of the H-bomb. The point of the piece was there was no secret. The guy who wrote it was entirely based on interviews with non-classified people. Open access to various libraries. There wasn't a thing in it that was classified. And yet the government came in and that resulted in the longest prior restraint in the history of this country. While it was going on, some of the most responsible organizations in the country, led by the Washington Post, urged the Progressive to take a dive, to let the government censor out what it wanted to. Otherwise they said all of the press would look bad by being in the same business, however involuntary as a publication so insensitive to national security. I mean the national inquire is bad, but this was terrible. The editor of the Progressive is Erwin Noel. And he was told by a number of people in the news industry that he should wait until he had a better, more attractive case to litigate. Well, he finally steered the government down and the article on the H-bomb was published. And so far as anybody can tell, no damage was done to anybody. But he kept pointing out before and after when all, you know, rights exist only when they're exercised. If you keep waiting for the right case at the right time, well it'd be like that thing that I saw around here today, the stamp will be on it, and your right can't be exercised. Now Morrison is not Erwin Noel, he's not John Peter Zenger or Elijah Lovejoy, he is poor soul, not a journalist. But if journalists let him go under, they'll go under too in time. Now he's been sentenced to two years in prison and the last I heard, which was two days ago from his lawyer, Mark Lynch, finally after all this time, ASNE and ANPA and the Washington Post and the Los Angeles Times are beginning to think that maybe they will come in on an amicus, but they haven't quite decided on what grounds. So the obvious point that I'm trying to come to is all of these dangers are quite real in terms of, I mean if we lose, and I hope I can speak for at least some of you when identifying with Morrison, if we lose in the Supreme Court, we will have an official secrets act. The government will then be in tower power to say that so and so, such and such is secret and if you violate it, you are guilty and there will be draconian punishments. The only way that, I mean, if you wait for public opinion, that's gonna be a very long wait because public opinion has not been informed on this matter. Though as I say, the Morrison case was covered in any kind of detail with any kind of specificity only in the Washington Post and in Tony Lewis' columns, as far as I know. So public opinion really doesn't care. The press should care. But from the Glomar Explorer to Morrison with a lot of waystops in between, the conclusion I come to, for those of you old enough to remember Walt Kelly's Pogo, there was one day in the strip, the porcupine came in and said to Pogo, I have met the enemy and it is us.