# Opposition Brief — Marchetti v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1507%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1972 - **Citation:** 409 U.S. 1063 ## Text 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 ee Tee Meee Aled a : sorter Lhd CME ee, ee ee Baviw. 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 fut - ‘a 7” " 7 me ” « ls Pat 7 Cagnte bain Nahas a8 stay hee cpt Sead alee iD Naha iat als td ane irg 32 ei hice arias k Abie nce spaheep cai Pe ot: ers en oA ee ee ae 8 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). | ee i ee ete 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