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Judge Warren stated simply that "the Court finds that the statute in question is not vague or overbroad. The Court is convinced that the terms used in the statute--'communicates, transmits or discloses '--include publishing in a magazine." (467 F. Supp., at 994). "The Government has met its burden under section 2274 of the Atomic Energy Act." (at 996). Both sides to the controversy argued that the legislative history of the Act provided support for their position but no language was quoted which could be said to be clearly dispositive of the issue of congressional intent. The absence of reported case law under either section 2274 or 2280 suggests a void in judicial interpretation This has left analysts of the area with only analogy to the espion6/ age laws as a fruitful source for research. But perusal of arguments on those provisions reveals little consensus in interpretation and requires acceptance of construction by analogy in any event--a methodology of dubious merit

as well.

in the assessment of congressional intent.

"Public Domain" and "Born Classified"

The Executive Branch has long asserted, without successful challenge, that it is possessed of the authority to classify information the disclosure of which is deemed detrimental to the national security. Currently, this authority is manifested in Executive Order 12065, entitled "National Security

(5/ Continued) but that to construe it otherwise would undermine the feasibility of having any such proscription. See 73 Columbia Law Review, at 1033-1038. For additional discussion of this question, see "Criminal Code Reform Act of 1977", Report of the Senate Judiciary Committee, S. Rep. No. 95-605 95th Cong., 1st Sess. at 215, n. 16.

6/ For a discussion of the espionage statutes, see "Criminal Code Reform Act", supra, S. Rep. No. 95-605, at 211 et seq.

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Information."

The Order sets out a classification system whose stated pur

pose is to "balance the public's interest in access to Government information with the need to protect certain national security information from disclosure." The Order acknowledges only one additional basis for classification: "Except as provided in the Atomic Energy Act of 1954, as amended, this Order provides the only basis for classifying information." (Section 1-101). The Order designates categories of classification (i.e. "top secret", "secret", and "confidential") and limits the authority for original classification to described persons. The Atomic Energy Act deals with the principle of information classification somewhat differently. Rather than describing types of information which

"should" be classified at a certain level of secrecy, the Act merely defines the subject matter which is in fact to be considered Restricted Data. That is, all data concerning "(1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy" is by definition considered Restricted Data unless specifically declassified or removed from that category. (42 U.S.C. 2014(y)). This situation has given rise to controversy over the idea that information generated outside the Government could be considered to have been "born classified", i.e., to have become Restricted Data by virtue of its subject matter alone, without regard to its source. It was in light of this concept that the Government in Progressive argued "that its national security interest...permits it to impress classification and censorship upon information originating in the public domain, if when drawn together, synthesized and collated, such information acquires the character of presenting immediate, direct and irreparable harm to the interests of the United States." (467 F. Supp., at 991).

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While Judge Warren did not deal specifically with the "born classified" concept, his views on the public availability of the information contained in the Morland article presage his conclusion as to the need for its protection:

The Court is convinced that the government has a right
to classify certain sensitive documents to protect its na-
tional security. The problem is with the scope of the class-
ification system.

Defendants contend that the projected article merely
contains data already in the public domain and readily
available to any diligent seeker. They say other nations
already have the same information or the opportunity to
obtain it. How then, they argue, can they be in violation
of 42 U.S.C. 2274(b) and 2280 which purport to authorize
injunctive relief against one who would disclose restricted
data "with reason to believe such data will be utilized to
injure the United States or to secure an advantage to any
foreign nation..."?

Although the government states that some of the in-
formation is in the public domain, it contends that much
of the data is not, and that the Morland article contains
a core of information that has never before been published.
Furthermore, the government's position is that whether
or not specific information is "in the public domain" or
has been "declassified" at some point is not determinative.
The government states that a court must look at the nature
and context of prior disclosures and analyze what the prac-
tical impact of the prior disclosures are as contrasted to
that of the present revelation.

The government feels that the mere fact that the
author, Howard Morland, could prepare an article explain-
ing the technical processes of thermonuclear weapons does
not mean that those processes are available to everyone.
They lay heavy emphasis on the argument that the danger
lies in the exposition of certain concepts never hereto-
fore disclosed in conjunction with one another.

The court has grappled with this difficult problem and
has read and studied the affidavits and other documents on
file. After all this, the Court finds concepts within the
article that it does not find in the public realm--concepts
that are vital to the operation of the hydrogen bomb.

Even if some of the information is in the public do-
main, due recognition must be given to the human skills
and expertise involved in writing this article. The author

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needed sufficient expertise to recognize relevant, as

opposed to irrelevant, information and to assimilate

the information obtained. (467 F. Supp., at 993).

Thus, while the Government did not argue that Morland had access to classified information or that any classified material had been stolen, Judge Warren

accepted the notion that the manner in which Morland compiled and analyzed the information was the determinant here, not the individual pieces of information themselves.

The Magazine relied in part on a World War II espionage case to demonstrate that information in the public domain should not be the basis for either prosecution under 42 U.S.C. 2274 or for suppression under 42 U.S.C. 2280. In United States v. Heine, 151 F.2d 813 (2d Cir. 1945), cert. denied, 328 U.S. 833 (1946), the defendant was charged under the predecessor statute of current 18 U.S.C. 794 with unlawfully disclosing information affecting national defense. The statute specifically proscribed the communication of such information "with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation." The court described the information which had allegedly been sent to Germany:

tech

The information which Heine collected was from various
sources; ordinary magazines, books and newspapers;
nical catalogues, handbooks and journals; correspondence
with airplane manufacturers...talks with one or two em-
ployees in airplane factories; exhibits, and talks with
attendants, at the World's Fair in New York in the summer
of 1940. This material he condensed and arranged in his
reports, so as to disclose in compressed form the kinds
and numbers of the planes--military and commercial--which
were being produced and which it was proposed to produce;
the location and capacity of the factories; the number of
their employees; and everything else, of which he could
get hold, that would contribute to as full a conspectus
as possible of the airplane industry. (at 815).

83-362 081 52

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All of the information relayed "came from sources that were lawfully accessible to anyone who was willing to take the pains to find, sift and collate it."

(Id.).

The court in Heine relied in part on the Supreme Court decision in Gorin v. United States, 312 U.S. 19 (1941). There the Court held that "the obvious delimiting words in the statute [the Espionage Act] are those requiring 'intent or reason to believe that the information to be obtained is to be used to the in

This re

jury of the United States, or to the advantage of any foreign nation.' quires those prosecuted to have acted in bad faith. The sanctions apply only when scienter is established. Where there is no occasion for secrecy, as with reports relating to national defense, published by authority of Congress or the military.departments, there can, of course, in all likelihood be no reasonable intent to give an advantage to a foreign government." (at 27-28). Judge

Learned Hand in Heine cautioned that with such a statute involving "so drastic a repression of the free exchange of information it is wise carefully to scrutinize, lest extravagant and absurd consequences result." (at 815). The court then reversed Heine's espionage conviction, saying: "it is obviously lawful to transmit any information about weapons and munitions of war which the services had themselves made public; and if that be true, we can see no warrant for making a distinction between such information, and information which the services have never thought it necessary to withhold at all." (at 816). Judge Hand then used language relied on by the defendants in Progressive: "Obviously, this could not mean that it may not be to the advantage of a foreign government to have possession of such information; it can only mean that, when the information has once been made public, and has thus become available in one way or another to any foreign government, the 'advantage' intended by the section