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Mr. HAMMOND. I should add though that there are often cases that come to us, not unlike the ITAR situation, in which the question at bottom is really not whether the regulation is constitutional but whether the statute is constitutional. That always presents a very difficult problem for the Department of Justice.
If you were to ask Mr. Foy or myself: What is our best view of the Constitution on whether this particular statute is unconstitutional? We might well say: Our best view is that it is unconstitutional. On the other hand, the invariable practice of our Department, and one that I believe is correct, is that if Congress writes a law we are obligated to enforce that law, even though our better view is that it may be unconstitutional, unless it is so patently unconstitutional and does such a disservice to the rights of individuals that we just in good conscience cannot find a way to support it.
There are those kinds of cases. There are cases in which we have said: Gee, this looks like it is probably unconstitutional. However, we have defended it anyway.
Mr. INGRAM. As Mr. Foy explains in his testimony, you are in the difficult position of having to bite your tongue when you find a statute to be unconstitutional, but you are forced under current procedures to represent the Congress in court. Perhaps we are building a record here for possible consideration of a House counsel, somewhat comparable to the one currently set up in the Senate.
Let me make one final observation. You did mention, as I understand it, the practice soon to be initiated of publishing Office of Legal Counsel opinions. This is terribly important. The number of Attorney General opinions over the years has declined. The Office of Legal Counsel opinions have increased in importance.
However, as I understand it, from what you have said this morning, you will only be publishing those opinions which have been released by the client agency and only with their approval to publish the opinion.
Are we creating an even worse situation than the current one, of secret law involved in OLC opinions? Are we, in effect, presenting a very one-sided view or volume of OLC opinions, in other words those which support the agency which you are free to release? Then in instances where the agency has received advice from you that it finds unfavorable, it will choose not to release the opinion.
Mr. Foy. I think that that may be a problem. I would say, however, that the instances are relatively rare in which there would be two OLC opinions dealing with the same subject matter, one of which would be favorable to the agency and one of which would not be, so that if you released one and not the other you would give a misleading view of the OLC's view of the legal point at issue. Either both of them would not be published or both of them would be published.
Nevertheless, I think you did put your finger on a problem.
Mr. INGRAM. We had earlier this week the Snepp opinion issued by the Supreme Court. Has the Office of Legal Counsel been asked or will it advise the executive agencies on the Office's interpretation of that decision? if so, what form might that take?
Mr. Foy. We may be asked at some future date. To my knowledge, we have not been asked yet. We are still reading the opinion ourselves.
Mr. INGRAM. Would you again be in a position of providing advice on that where it would not be made public?
Mr. HAMMOND. I would like to add to what Mr. Foy has already said. Snepp is a good example. There may well be-although I have not seen any yet-efforts for our intelligence agencies and for others in nonintelligence entities to wish to develop contracts for employees to sign or administrative guidelines for employees to be bound by that would impose the kinds of restrictions that the Court found in the Snepp case.
If that happened, our Office would probably be involved in it and would be so in an advisory function. We would be saying: Well, this is what the opinion seems to allow. We might go well beyond it and say, even though the opinion allows it there are serious first amendment ramifications of any action in this area. That is the kind of opinions we would be asked for. They would, at least while the decisionmaking process is afloat, probably not be made public.
A very good example of that is--
Mr. INGRAM. Over the years, I will just summarize, Mr. Chairman. We have had before this subcommittee a number of bills referred to variously as "whistle blower” bills, which would provide a one liner in the Freedom of Information Act stating that no employee could be sanctioned for releasing material available under the requirements of the Freedom of Information Act.
We had long thought that such a one liner was not necessary because the reading of the act, we thought, would make that clear. Perhaps the Snepp decision has thrown some doubt on that, given the Court's broad confidential material wording that they included. It might be appropriate to dust off that earlier legislation and have a look see.
Thank you, Mr. Chairman.
We appreciate your being here today. Some very interesting questions have been raised in this area. I do not think the Edler decision has ended all of them. That is about the only judicial guidance we have. We will look forward to working out some of these problems with you in the future.
I have one question. Your testimony contains a suggestion concerning the three patents and inventions that the Justice Department has requested be placed under secrecy order. Is the Government using the three inventions that have been under your consideration for more than 25 years?
Mr. Foy. I do not know, Mr. Chairman.
Mr. PREYER. That raises the question of whether this is a case of perpetual patent pending. If the secrecy orders are ever lifted, would the Government receive patents and then have 17 more years of exclusive use?
Mr. Foy. As I understand the Secrecy Act--and Mr. Di Pietro can correct me if I am wrong-the effect of the Secrecy Act, in a case where the Government uses the invention while the order is
in effect, may actually be to extend the effective life of the patent, because the Government will have to pay for its use during the time the order was in effect.
Then, when the order is lifted, the patent issues and the patent monopoly will last for another 17 years, so it is conceivable that the inventor may actually be benefited from this process. I do not say that it works that way in very many cases, but that is one of the effects.
The statute provides quite clearly that if the Government has been using an invention subject to a secrecy order for 25 years, the inventor can go into the Court of Claims and get compensation for that use.
Mr. PREYER. Mr. Moore has raised some problems in getting compensated for that period of time.
Are there any further questions? [No response.]
Mr. PREYER. If not, we appreciate your being here. The committee will stand in recess until further notice.
[Whereupon, at 12:30 p.m., the subcommittee adjourned, to reconvene subject to the call of the Chair.)
THE GOVERNMENT'S CLASSIFICATION OF
THURSDAY, MARCH 20, 1980
HOUSE OF REPRESENTATIVES,
Washington, D.C. The subcommittee met, pursuant to notice, at 9:40 a.m., in room 2203, Rayburn House Office Building, Hon. Richardson Preyer (chairman of the subcommittee) presiding.
Present: Representatives Richardson Preyer, Robert F. Drinan, Ted Weiss, and M. Caldwell Butler.
Also present: Representative Paul N. McCloskey, Jr.
Staff present: Timothy H. Ingram, staff director; Donna Spradling, secretary; Thomas G. Morr, minority professional staff, Committee on Government Operations; and Gerald Sturges, Congressional Research Service, Library of Congress.
Mr. PREYER. We begin today our second hearing on the classification of private ideas and ability of the Government to restrict or assert ownership over privately generated information.
We will focus on the Atomic Energy Act and its so-called born classified provisions. In addition, we will hear from a panel, including the Director of the National Security Agency, on secrecy orders issued under the Invention Secrecy Act for cipher or code items.
We are delighted to have as our first witness Hon. Pete McCloskey, the former ranking minority member of this subcommittee, who has entertained a long and continuing interest in these issues.
We appreciate all the contributions you made when you were on the subcommittee. We are delighted that you are continuing to make contributions from the other side of the counter here.
STATEMENT OF HON. PAUL N. McCLOSKEY, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. McCLOSKEY. Mr. Chairman, I don't know that I contribute a solution today but I am glad to have the chance to call to the committee's attention a problem I deem very, very grave,
Knowing the demands on your time, I am extremely grateful that you would take time today to consider the "Born Secret" concept of privately generated nuclear weaponry data under the Atomic Energy Act of 1954. The problem is a difficult one. Three private citizens apparently acting in good faith, a Harvard student, a newspaper reporter and an amateur, untrained nuclear scientist have been able to write articles or letters on H-bombs which the
Government considers so dangerous to the peace of the world that they must be immediately classified under the law.
Some 11 months ago à constituent, Chuck Hansen, an amateur nuclear weapons enthusiast of Mountain View, Calif., called my attention to the Department of Energy's involvement in the Progressive case and his belief that DOE was managing its classification program improperly.
It was Hansen's contention that DOE had permitted leading Government scientists in years past to publish the basic concepts of nuclear weaponry, but was applying a different standard to private citizens such as Howard Morland, who had written the proposed article for the Progressive magazine.
Judge Robert W. Warren of the Western District Court of Wisconsin granted a temporary restraining order against publication of the Progressive article last spring finding that "life is more important than free speech: ‘Faced with a stark choice between upholding the right to continued life and the right to freedom of the press, most jurists would have no difficulty in opting for the chance to continue to breathe and function as they work to achieve perfect freedom of expression **
Judge Warren cited the earlier Supreme Court case of Near v. Minnesota, 283 U.S. 697 (1931) where the Supreme Court had held that the prior publication of troop movement in time of war would threaten national security and would therefore be restrained.
Judge Warren said: "In light of these factors, this Court concludes that publication of the technical information on the hydrogen bomb contained in the article is analogous to publication of troop movements of locations in time of war and falls within the extremely narrow exception to the rule against prior restraint."
In effect the Court was saying the widespread publication of nuclear information could threaten the freedom of the world to exercise free speech.
To this day, the Government has not prosecuted Morland of any crime. As a private citizen, whatever Morland wrote, in order to constitute a crime in the Progressive article, would have to be done “with reason to believe such data will be utilized to injure the United States or to secure an advantage to any foreign nation." (U.S. Code 42, section 2274(b).)
“Restricted Data,” publication, of which is prohibited by the Atomic Energy Act of 1954 is defined as: "all data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of specific nuclear material; or (3) the use of special nuclear material in the production of energy, but shall not include data declassified or removed from the Restricted Data category pursuant to section 2162 of this title." (U.S. Code 42, section 2014, 11(y).)
Morland clearly felt that he was publishing nothing more than information which had lawfully been "removed from the 'Restricted Data' category" through information in the public domain.
Presumably if he had been thinking anything else he would have been prosecuted by the Justice Department if this was indeed so dangerous to the Nation.
This was also the belief of Chuck Hansen, a man of whom I am convinced is an honest and patriotic private citizen. On August 27, 1979, frustrated by his inability through my office--and he tried