A. The "Official Secrets" Act

Five sections of S.1, would reverse 200 years of democratic decision-making under the Constitution by preferring government secrecy to the freedoms guaranteed by the First Amendment. Sections 1121-25 of S.1 would deliver into the hands of the Executive complete and final control of information "relating to the national defense." The free flow of facts and opinions on which self-government ultimately depends would be dammed at its source. Our true national security, which springs from "uninhibited, robust, and wide-open" debate on public issues and public officials, New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), would be destroyed. When Congress first debated the Espionage Act of

1917, two Senators marked off for future generations

the parameters of debate over the protection of national

security:

Senator Nelson:

"

[While] there are some expressions perhaps in the bill that may seem a little too drastic, yet I hold that when the safety of the country is at stake the rights of the individual must be subrogated to the great right of maintaining the integrity and welfare of the Nation."

Senator Cummins: "The Senator from Minnesota seems to
think this is necessary for the
safety of the United States. I do
not; nor do I think we have a Nation
worth saving if this is necessary.
If the power that is here rought to
be given to the Executive, coupled
with these offenses that
first time described in 7

for the ican life,

are necessary, I doubt whether the
Nation could be preserved."

54 Cong. Record 3488 (1971).

We submit that Senator Cummins had the best of that

11

of S.1 begins with the spirit which permeates them Executive distrust of the American people and the American press. Needless to say, it is ironic that legislation of this kind should be proposed so soon after the fall of the Nixon regime. That administration's obsession with secrecy, its distrust of the American people, and its animus towards the press should surely have taught us the lesson of the need for more not less openness in government, and more not less trust of the people and the press. But Sections 1121-1125 of S.1, as amended, are written as if Watergate and its fallout

:

never happened. A moment's thought must lead to the

obvious conclusion that these provisions must be

thought objectionable in principle and practice,
and we urge the Congress to reject them and thus
refuse to elevate official secrecy to the status of

law.

Secondly, we believe that the over-all thrust

of these statutes is profoundly unconstitutional.
They strike at the heart of free speech and due pro-
cess of law. They sweep within their prohibitions
the collection, communication, or publication of in-
formation relating to the national defense regardless
of its origin. They set no standard whereby the
conscientious citizen, public official, or news re-
porter may determine whether the information he

possesses, gathers, or shares with others is constitu-
tionally protected

-

or the subject of criminal sanc

tions. They use terms so broad and vague as to force

men and women of good will to guess at the meaning of

the law

and act at their peril. They encourage

official abuse by inviting selective prosecution and adjudication on political or personal grounds.

Coupled

with the capital punishment provisions of S.1, passed earlier this year, they might even provide a mandatory death penalty for individuals who sought only to inform their fellow citizens on the great public issues of our time.

Throughout this chapter, the commission of a criminal act is made dependent upon its being committed in "time

of war, "
or the punishment is enhanced if the crime is
committed in "time of war." Sabotage as a Class A
felony can be committed only "in time of war" ($1101);
one can impair military effectiveness by false state-
ments only "in time of war" (§1112); whether or not
espionage is committed "in time of war," determines
' whether the crime is a Class A or B felony (§1121).
Whenever an offense turns on whether the United

States is at war, S.1 should require that the war is
one declared by Congress under Art. I, Sec. 8 of the

Constitution.

All of the offenses which require our being at war are not only traditionally thought to be serious indeed, but some of them inevitably implicate questions of freedom of speech. And if the First Amendment is to be so seriously impaired under any of these provisions, those drastic restrictions upon fundamental freedoms should be permitted, if at all, only after a deliberate and explicit declaration of war by Congress, as required by Article I, Sec. 8 of the Constitution. should be insured that imposition of the severe penalties provided in these sections, together with their intrusions into the First Amendment, not be left to the sole determination of the Executive Branch of government.

The nation

It would be a substantial retrogressive step to provide that any "war," whether or not it is declared by Congress, may trigger prosecutions and affect sentences under various sections of Chapter 11. Judicial and

of the legality of the Vietnam War and similar

questions were appropriately raised by the engagement of our troops in the Dominican Republic in 1965. The formulation of "declared war" makes explicit what is required prior to the application of these penal sanctions, particularly since many of them curtail fundamental freedoms normally protected by the First Amend

ment.

1. Section 1121. Espionage.

The American Civil Liberties Union recognizes

that genuine espionage is a serious offense against

the nation, requiring criminal sanctions and punishment. Because it is subject to serious abuse in times of national crisis, it must be closely and carefully defined. See Gorin v. United States, 312 U.S. 19 (1941). Instead, . Section 1121 broadly criminalizes the knowing collection or communication of "national defense information," with the "knowledge that it may be used, to the prejudice of the safety or interest of the United States, or to the advantage of a foreign power

By eliminating specific intent as an element of the crime of espionage, S.1 invites wholesale abuse of the First Amendment by allowing prosecution and conviction of individuals whose purpose in speaking of so-called "national defense information" is to inform the American

people of governmental activities which the public has a right to know, and which they should know, in order to

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