Opposition Brief — Marchetti v. United States

Question presented... ......................--.-------

CITATIONS

Cases:

Chicago & Southern Airlines, Inc. v. Waterman Steam-

ship Corp., 333 US. 103_____- aia

E. W. Blias Co. v. United States, 248 US. ‘37.

Freelman v. Maryland, 380 US. 51-. -- ahead

Goldwasser v. Brown, 417 F. 2d 1169, certiorari de-

nied «ab nom. Goldwasser v. Seamans, 397 US. 922.

Kegishian ¥. Board of Regents, 385 U.S. 589___.____-

Kingsley Books, Inc. v. Brown, 354 US. 436___- -- =

Maas v. United States, 371 F. 2d 348.

Sd canine

_

7

13

10

9

13

10

New York Times Co. v. United States, 403 US. 713. 5.8, 16

National Labor Relations Board +. Giasel en Co.,

GD Ge Ge ccccccnces ,

Pickering ¥. Board of Education, 391 U. S. 563_____-

United Public Workers v. Mitchell, 330 US. 75_ ~~ -—-

United States +. Curtiss-Wright — _ 299 Us.

United States v. Hunter, 459 F. 2d 205, certiorari denied,

41 U.S. Law Week 3208____.__-. —_

Wyandotte Co. v. United States, 389 U: ot enaneia

Pa)

4s 36s8—T2

7 Oe er

Constitution and statutes:

United States Constitution:

First Amendment

Miscellaneous:

Henkin, The Right to Know and the Duty to Withhold:

The Case of the Pentagon Papers, 120 U. Pa. L. Rev.

271 (1971)

CREAR IT RIE RTE A ee

gn the Supreme Gourt of the Gnited States

Ocroner Term, 1972

>

No. 72-482

Victor L. MARCHETTI, PETITIONER

.

Uxirep STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

Neither the opinion of the United States District

Court for the Eastern District of Virginia, Alexandria

Division (Pet. App. 19a-28a), nor the opinion of the

Court of Appeals for the Fourth Circuit (Pet. App.

la-lXa) is reported.

JURISDICTION

The judgment of the court of appeals was entered

on September 11, 1972. The petition for a writ of cer-

tiorari was filed on September 21, 1972. This Court's

jurisdiction is invoked under 28 U.S.C. 1254(1).

(1)

2

QUESTION PRESENTED

Whether the courts below properly enjoined peti-

tioner, a former employee of the Central Intelligence

Agency, from violating his agreement with that

agency, made when he entered employment there, that,

without the prior approval of the agency, he would not

publish or disclose any classified information he ob-

tained through his employment.

Section 403(d)(3) of Title 50 of the United States

Code provides:

§ 403(d) For the purpose of coordinating the

intelligence activities of the several Government

departments and agencies in the interest of na-

tional seeurity, it shall be the duty of the

Agency, under the direction of the National

Security Council—

* = = * =

(3) to correlate and evaluate intelligence re-

lating to the national security, and provide for

the appropriate dissemination of such imtelli-

gence within the Government using where ap-

propriate existing agencies and facilities: Pro-

vided, That the Agency shall have no _ police,

subpoena, law-enforcement powers, or internal-

security functions: Provided further, That the

departments and other agencies of the Govern-

ment shall continue to collect, evaluate, corre-

late, and disseminate departmental intelligence:

And provided further, That the Director of

Central Intelligence shall be responsible for

protecting intelligence sources and methods

from unauthorized disclosure ;

3

STATEMENT

The United States brought this suit to enjoin the

petitioner, a former employee of the Central Intelli-

cence Agency (“the Agency’’), from further violating

his secrecy agreement with the Agency, by disclos-

ing, publishing or otherwise revealing certain current-

ly classified intelligence information. The United

States also sought an order requiring petitioncr to

cubeait to the Agency for examination prior to their

release any writings which purport to relate to the

Agency, intelligence information or intelligence

comrees and methods, in order to insure that the dis-

cloatre of such information is not prohibited by the

seerecy agreement.

Petitioner was an employee of: the Agency from

October 3, 1955 until he resigned, effective September

5. 1969. During this time he oceupied various positions

of trust and responsibility, including that of Fxeeu-

tive Assistant to the Deputy Director.

On October 2, 1955, prior to beginning his work at

the Agency and before he was given access to classi-

fied information, petitioner executed a secrecy agree-

ment undertaking not to divulge in any way any clas-

sified information, intelligence or knowledge, except

in the performance of his official duties, unless specif-

ically authorized in writing by the Director or his au-

thorized representative. The agreement also provided

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4

that the undertaking would continue after he left the

Agency.’

At trial, the government presented the testimony of

Mr. Thomas H. Karamessines, a Deputy Director of

the Ageney, and Mr. Howard J. Osborn, Director of

Security for the Agency. Mr. Karamessines testified

that various statements in an article submitted by

petitioner to Esquire Magazine and six book publish-

ers contained classified information which would com-

promise intelligence related operations of the Agency

(Tr. 10-20). He further testified that the disclosures

would have a serious and substantial adverse impact

upon national security interests, and explained in de-

tail why that was so (Tr. 10-20, 40, 69, 72, 77-79, 82-

84, 88-91). Mr. Osborn testified that petitioner, in

the past, had violated his secrecy agreement in the

course of media interviews in which he participated

during 1971 by disclosing classified information (Tr.

107, 109-110).

Petitioner admitted that he had submitted an article

to Esquire Magazine and to six publishers in Mareh

1972, as the basis of a book, without previously sub-

mitting it to the Agency (Tr. 156-159). Petitioner

also admitted that for the most part the information

' The agreement is set forth in full in Pet. App. 2la-22a. At

the time petitioner was initially interviewed for employment

with the Agency in March 1955, he signed a secrecy .agree-

ment in which he recognized that the sensitive nature of the

Agency's work required the imposition of, and compliance

with. strict security measures (Pet. App. 20a). Petitioner also

signed an oath of secrecy upon terminating his employment

(Pet. App. 22a-25a).

5

contained in the article was obtained as a result of his

employment with the Agency (Tr. 159-161).’

The district court held that petitioner had entered

into a valid secrecy agreement with the Agency, that

at least five of the items appearing in the petitioner’s

article and at least three items which were taped for

television interviews were classified, and that he had

violated the agreement because the disclosure of the

information had not been authorized by the Director

of the Agency or his representative (Pet. App. 19a-

28a).°

The district court enjoined the disclosure of any

information relating to intelligence activities and any

information concerning intelligence sources and meth-

ods (Pet. App. 30a). The court also ordered (Pet.

App. 30a) :

That the defendant shall submit to the Cen-

tral Intelligence Agency, for examination 30

days in advance of release to any person or cor-

The petition contains various references to statements in an

affidavit and deposition of Mr. Osborn and answers to interrog-

atories by Mr. Helms. (£.g.. p. 11, n. 9). The statements and

answers referred to were not introduced into evidence at the

trial and thus they were not properly before either the district

court or the court of appeals.

* The district court found (Pet. App. 27a): “| CJontrary to the

documents’ proscriptions, the defendant has divulged and pub-

lished and revealed, by writing and by word, information re-

lating to the national defense and security and information of

that nature relating to intelligent [sic] sources, methods, and op-

erations. both classified and otherwise, without first obtaining con-

sent of the CLA.” The sealed brief filed by petitioner in an effort to

demonstrate that the evidence was insufficient to satisfy a prior re-

straint under Vew York Times Co. v. United States, 403 US. 713,

does not in any way detract from that finding.

tote ‘pill tility Altai Rea

6

poration, any manuscript, article or essay, or

other writing, factual, fictional or otherwise,

which relates to or purports to relate to the

Central Intelligence Agency, intelligence, intel-

ligence activities, or intelligence sources and

methods, for the purpose of avoiding inadvertent

disclosure of information contrary to the pro-

visions and conditions of the aforesaid secrecy

agreements, and such manuscript, article, essay

or other writing shall not be released without

prior authorization from the Director of Cen-

tral Intelligence or his designated representa-

tive.

The court of appeals affirmed, ruling that the

seerecy contract is valid and constitutionally enforce-

able, and otherwise reasonable and lawful. The court

held, however, that the injunction against disclosure

entered by the district court was too broad and limited

it to barring classified material in accordance with the

contract.

ARGUMENT

The government obtained an injunction in this case

to prevent petitioner from further violating his con-

tractual undertaking not to disclose classified intel-

ligenee information he obtained during his employ-

ment with the Central Intelligence Ageney, the pub-

heation of which, according to top officials of that

Agency, would compromise the Agency’s intelligence-

gathering activities. By statute, the Director of the

Agency is responsible “for protecting intelligence

sourees and methods from unauthorized disclosure”.

30 U.S.C. 403(d) (3). In carrying out this responsi-

bility, the Agency requires employees as a condition

é

of employment to enter into a secrecy agreement. As

the court of appeals held (Pet. App. 13a), such agree-

ments are appropriate to implement the Congressional

direction of secrecy, particularly since the information

developed by the Agency is by its nature highly sen-

sitive to the conduct of foreign affairs and to the na-

tional defense. The court of appeals decision thus

accords With this Court’s consistent recognition of the

need for secrecy in the sensitive areas of foreign af-

fairs and national security. United States v. Curtiss-

Wright Export Corp., 299 U.S. 304, 320; Chicago cd

Southern Airlines, Inc. v. Waterman Steamship Corp.,

232 U.S. 103, 111: E. W. Bliss Co. v. United States,

248 U.S. 37.

1. Petitioner makes a three-fold attack upon the in-

junctive relief granted by the courts below. First, he

claims that the contractual provision banning unau-

thorized disclosure of classified material is invalid and

unenforceable, and that requiring submission of ma-

terials relating to the Ageney for approval before publi-

cation is an unconstitutional prior restraint on free

speech, even if approval for publication is ultimately

granted. Second, petitioner claims that even if he may

he required to submit materials in advance of publica-

tion for approval, approval can be denied only if in

fact the material has heen properly classified and that

the court of appeals erred in holding that he may ob-

tain judicial review only with respect to whether the

material is classified and in the public domain. Third,

petitioner argues that the terms of the injunction—

allowing the Agency a “maximum” period of 30 days

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in which to approve or disapprove the publication of

materials—“are too broad.”

a. Relying on New York Times Co. v. United States,

403 U.S. 713, petitioner claims that in the circum-

stances of this case his right to publish classified ma-

terial is no “different from that of the New York

Times and the Washington Post” (Pet. 18) and that

the prior restraint imposed on him by the injunction

can be justified only by showing that the “disclosure

of the information sought to be restrained would

‘surely result in direct, immediate and irreparable in-

jury to the Nation or its people’’’ (Pet. 16, quoting

the coneurring opinion of Mr. Justice Stewart in New

York Times v. United States, 403 U.S. 713, 730).

Petitioner’s reliance on New York Times Co. vy.

United States, 403 U.S. 713, is misplaced. There the

United States sought an injunction barring two news-

papers from publishing information which they had

obtained from specified classified documents. This Court

held, ina per curiam opinion, that the United States had

net met the “heavy burden” which is required before

an injunction may be obtained restraming a news-

paper from publishing news.

The instant case involves an action against a former

emplovee of the United States who agreed, as a con-

dition of his employment, not to disclose classified

information which caime into his possession during

that employment. There is no injunction against any

publisher. The order of the district court, which was

9

sought only after serious breaches of the agreement

had occurred,’ runs only against petitionersand merely

requires him to comply with the contract into which

he had freely and voluntarily entered.

Petitioner asserts, however, that while “private

parties may agree by contract to waive their rights

under the Constitution, when the government is a

party to an agreement such waivers are unenforceable

if they involve fundamental rights of free

speech * * *” (Pet. 19). Regardless of the reasonable-

ness of the contractual provision and the significant

interest of the United States in maintaining the con-

fidentiality of classified documents, petitioner argues

that the restrictions which may be imposed on his

freedom to publish classified information are no dif-

ferent from those which may be imposed on a news-

paper. While it has been held that “unreasonable”

conditions may not be attached to public employment

(Keyishian v. Board of Regents, 385 U.S. 589, 605-

606). this Court has nevertheless recognized that a

public employee may be subjected to greater restraints

than ordinary citizens. As the Court observed in an

‘The affidavit of Thomas H. Karmessines. which was ad-

mitted in evidence in the district court and which we are filing

as a sealed exhibit. sets forth at least five separate items of

classified information, appearing in an article submitted to /’s-

quire Magazine. which would compromise currently active intel-

ligence sources and jeopardize current intelligence-gathering

operations. See. also, supra, p. 4. Petitioner does not deny that he

possesses such information. but contends that the Agency should

rely on his judgment with respect to the effect that disclosure will

haveon national security (Pet. 15).

|

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analogous context in Pickering v. Board of Education,

391 U.S. 563, 568, cited by petitioner (Pet. 19):

* © * “(T]he theory that public employment

which may be denied altogether may be subjected

to any conditions, regardless of how unreason.

able, has been uniformly rejected.”’ Ke gishian y.

Board of Regents, supra, (385 US.) at G05-an,

At the same time it cannot be gainsaid that the

State has interests as an emplover in rerulating

the speech of its emplovees that differ <ienif.

cantly from those it possesses in connection with

regulation of the specch of the citizenry i»

general.’

The Central Intelligence Agency, whoe principal

function necesscrily touches upon the mest scamitive

and confidential matters bearing on the Executive's

conduct of foreign policy, “has interests as ay em

plover” that differ ~<ignificantly from these pew

sesses in connection with regulation of the speech of

* There are, of course, Numero cases in various conmteus

reaching a similar conclusion, See. cg. f eited Petty Werle n

v. Mitchell, 330 US. 75: Goldwamesr ©. Brown, UT F. od 1,

1176-0107 oCLALDNCL). certiorari denied «64 nom. Goldie ©

Seomans, 397 TOS. 922. Courts have authorized injention

against publications where important: governmental interests

were at stake. Woes v. United States, 371 F. 2d 348 (CAD):

United States ©. Hanter, 4 F. 24 25 (CA. 4). certiorari

denied, 41 US. Law Week 32058: see aleo Vetione!l Lichor Rete

tions Board +. Giseel Packing Co.. 3% US. STh, Gi6-tem,

Henkin. The Right to Know and the Duty to Withheld: The

Case of the Pentagon Papers, 120 U. Pa. L. Rev. 271 (1971).

Cf. 5 USC. 552(b)(1), which provides an exemption from

disclosure under the Freedom of Information Act for matters

“specifically required by Executive order to be kept secret in the

interest of the national defense or foreign policy * * *.~

the citizenry in general,” in conditioning employment

on a promise by the employee that he net make un-

authorized disclosure of clas<ified information which

coues into his knowledge and pose<<ion during hix

enmplovment, As the court of appeals stated (fet.

App. Waa-I4a):

Confidentiality inheres in the <ituation and

the relationship of the parties. Since informa-

tien highly sensitive to the conduct of forcien

affairs and the national defense was invelved,

the law would probally imply a secrecy agree-

went had there been no formally expressed

agrectuent, but it certainly lends a high degree

of reasonablenes< to the contract in it< pretee-

tien of classified information from unauthorised

di<closure,

Moreover, the Government's need for secrecy

in this area lends justification to a system of

prior restraint against disclosure by employees

and former employees of classified information

dtaine | daring the course of enplovnment, One

may speculate that ordinary criminal sone) ious

might suffice to prevent unauthorized di<clo<ire

of such infonnation, but the rick of harm from

disclo<ure is so great and maintenance of the

confidentiality of the information so neees<ary

that greater and more positive assurance is

warranted, Some prior restraints in seme cir-

cumstances are approvable of course. * * *

b. Petitioner claims that the courts below adepted

an erroneous standard for judicial review of the

Ageney’s refusal to authorize publication of particn-

lar material. The court of appeals held that legal and

practical considerations precluded judicial review of a

decision by the Executive that particular information

be classified (Pet. App. 5a). Judge Craven, in a con-

curring opinion, suggested that conclusive effect

should net be given to the claxifieation, but that a

presumption of reasonableness attached to the class-

fication: and that this presumption could be overcome

only by clear and convineing evidence that the clax<-

fieation ix arbitrary and capricious (Pet. App. Ia).

Petitioner argues that if he sulanit< a proper! pob-

lication for approval and if approval is denied on the

ground that material sought to be published ix classi-

fied, his right to judicial review must cover not only

the ixenes whether the material ix cla<<ified or already

in the public domain, but al<e whether the material

has heen properly classified.

While we agree with the majerity opinion in the

court of appeals, the ice is premature. Petitioner

hax net submitted any material for approval, and the

Ageney has not declined te approve any material for

publication. The question of judicial review of Agener

di<approval of material will net arise unless and until

petitioner submits material and the Ageney disap

proves all or part of it, and petitioner challenges the

action in court. At the pre<ent time that que<tien ix

academic.

e. Petitioner's final claim relates to the terms of

the injunction, which allow the Ageney “a maximum”

of thirty day< in which to determine whether the ma-

terial sulunitted contains clas<ified information. This

provision he claims ix “toe bread”: a one day peried,

he snegest<, would he sufficiently narrow ( Pet. 21-22).

The thirty day peried ix a reasenable “maxim”

perv! for the Agency to evaluate writing< whieh may

inched anything from a detailed article te a complete

colume dealing with its affairs. Unlike determimations<

in obweonity cases, here the material nust be reviewed

te determine whether any of the information ha< as

ee wetter a classified document te whieh petitioner

heel acess during fourteen years of employment.

Kiegdeq Books, Ine. v. Brown, DA US. £36, on

chieh petitioner relie< in support of his <rerestiet

that “one day” would be an appropriate periad, ts

inorenite. Kingsleg Books was net a prior rest ramit

owe, aed the Court in Freedman v. Margland, 330

{S. . in whieh the <tatutery procedure in Kingsley

cox vited, declined “te lay down rigid time limit<”

and recognized that a longer peried of time would be

appropriate in a different context (80 U.S. at 61).

The Court suggested in Fireedman that since films are

<beduled for showing well before actual exhibition,

“[olne possible scheme would be te allow the exhibi-

tor or distributer te <aubmit hix film early enough to

enewre an orderly final dix<pexition™” (380 US. at 61).

Mane<eript< for heeks and draft« of magazine arti-

chs. like files, are generally available well before the

joresaes poll: the limited period of time involved here

Lantiy px an unreasonable burden on the exereixe

of petitioner's First Amendment rights.

Moreover, thix case dees net invelve a general cen-

<orship statute, but an equitable decree always sub-

ject te judicial control and modification should the

cipcomstanees warrant. The court of appeals held that

“the CLA mut act promptly te appreve or disap-

14

prove any material which may be submitted to it”

(Pet. App. 14a). If petitioner is able to establish an

unwarranted delay even within the thirty day period

or if in a given case speed is of the essence, he would

not be without a remedy.

2. Petitioner alleges that “[s]Jince Congress has

never authorized extraction of the secreey agreements

in this case or suit to enforce them”’, the district court

was without jurisdiction to entertain he complaint

(Pet. 23). |

This argument ignores 50 U.S.C. 403(d) (3), sapra

p. 2, which expressly states that “the Director of

Central Intelligence shall be responsible for protect-

ing intelligence sources and methods from unauthor-

ized disclosure.” Congress obviously intended that the

Director, in exercising his designated “responsibility,”

would formulate reasonable rules and regulations for

protecting intelligence sourees and methods from un-

authorized disclosure. It was within the Director's au-

thority to require a prospective employee to enter

into a contract in which the latter agreed not to dis-

close classified information coming into his possession

during employment. There can be no serious dispute

that under 28 U.S.C. 1345, which confers on the glis-

trict courts “original jurisdiction of all civil actions,

suits or proceedings commenced by the United States”,

the district court had jurisdiction to entertain this ae-

tion for specific enforcement of a contract.

Moreover, apart from the claim for specifie per-

formance of a contract, “the United States may sue to

protect its interests.”’ Wyandotte Co. v. United States,

15

389 U.S. 191, 201. Petitioner concedes as much (Pet.

94), but argues that “‘any such attempt to enjoin argu-

ably protected First Amendment activity runs immedi-

ately afoul of the clear prohibition on prior restraints”

( Pet. 24-25). But this argument does not go to the is-

cue of standing or to the jurisdiction of the court to

decide the claim. The United States had standing to

bring this action and the district court had jurisdiction

to decide the case.

4. Petitioner’s final argument is that the govern-

ment “exercised an intolerable degree of control” over

his trial preparation, “thus creating a denial of due

process and a high potential for the miscarriage of

justice” (Pet. 26). Petitioner claims that the govern-

ment improperly required that those assisting him in

the preparation of his defense and prospective wit-

neawes be cleared for access to classified materials be-

fore they could examine the confidential and classified

information involved in this case.

The procedure to prevent further unauthorized dis-

closure of classified materials was approved by the

cmrt of appeals’ order dated April 26, 1972. The order,

however, conditioned the right of the United States to

conduct security clearance of prospective witnesses on

the representation that the government would not at-

tempt to dissuade any witness whose name had been

<ubmitted from testifying.

There is no allegation that this order was disre-

carded; that petitioner did not ultimately obtain ac-

eexs to all relevant materials; or that petitioner was

oe wet

in any way prejudiced in presenting his case. The

charge that the government exercised “an intolerable

degree of control” over his defense is unsupported br

the reeord.*

CONCLUSION

The petition for a writ of certiorari should be de

nied.

Respectfully submitted.

Erwix N. Griswowp,

Solicitor General.

Haruixctox Woop, Jr.,

Assistant Attorney General.

Water H. Fiescuer,

Irwix Go_pBioom,

Attorneys.

Novemper 1972.

* Petitioner claims that the distriet court improperly denied

his application for access to the sealed transcript of the pro-

ceedings in the Vew York Times case and that the “effect of

this order was to deny the defendant access to the record of the

only case in which standards were devised for determining the

scope of the extraordinary exception to the rule against prior

restraints * * *” (Pet. 28). Whether the district court judge

had the power to grant this request with respect to sealed ree-

ords in another district court is debatable. But. in any event.

as we have already demonstrated, the standard applied in the

New York Times case is not appropriate in the context of this

case. Both courts below agreed: hence the denial of access to

the sealed transcript did not interfere with petitioner's defense.

ee