documents that ever passed across his desk warranted secrecy. William G. Florence, a retired Defense Department classification expert, testified here that only one-half of 1 percent of all documents presently classified should be classified; 992 percent could be declassified without harm to the national security. A particularly telling example of overclassification by the Executive and of an inadequate response by the judiciary is the case of Epstein v. Resor, 421 F. 2d 930 (9th Cir. 1970). There, a historian sought access to a 25-year-old document, classified top secret, dealing with refugee problems at the close of World War II. The Defense Department had reviewed the classification in 1954 and again in 1967. Both times the top secret stamp remained, the Government presumably concluding that disclosure of the information contained in the document would result in "exceptionally grave damage to the Nation." That the Government would take such a position as to those documents, and that a court should sustain it, strongly supports our recommendation for substantially restricting the classification system. No episode more clearly reflects the abuses in the system than the classification of the "Pentagon Papers." Those papers were, for the most part, classified top secret, (Group I). Section 1(a) of the Executive order, dealing with "defense information or material which requires the highest degree of protection,” defines the top secret category as follows: The top secret classification shall be applied only to that information or material the defense aspect of which is paramount, and the unauthorized disclosure of which could result in exceptionally grave damage to the Nation such as leading to a definite break in diplomatic relations affecting the defense of the United States, an armed attack against the United States or its allies, a war, or the compromise of military or defense plans, or intelligence operations, or scientific or technological developments vital to the national defense. Before the cases reached the Supreme Court, 19 Federal judges had reviewed the papers in camera. The Government was offered every opportunity to show how the national security would be endangered. Yet, 12 of these judges were completely unpersuaded and the other seven merely felt the Government should have a further chance to make its showing. Not one Federal judge wholly agreed with the Government's claim. We believe the public was absolutely entitled to receive the information in the Pentagon Papers since these papers explored the origins of the most controversial public issue of our century. The top secret classification given those papers was absolutely unjustified, and did a vast disservice to the principles of our free society. In a moment I will suggest some criteria and procedures for the long-run overhaul of the classification system. But there are certain interim measures which can be taken immediately. We propose that all documents currently classified as secret or confidential be declassified automatically by the end of this year. First, it is clear that the definitions of secret and confidential in the Executive order are so broad that it is impossible to conceive of any kind of information which could not be encompassed within them. A phrase such as "jeopardizing the international relations of the United States," which justifies a secret stamp, could apply to domestic unemploy ment statistics. A phrase such as "prejudicial to the defense interests of the Nation" could include anything, and is thus no criterion at all. Second, as I have already pointed out, virtually everyone agrees that there has been massive overclassification. Presumably nothing even arguably involving the national security is classified less than top secret. It is obvious that over-not under-classification has been the rule. Declassification of all secret and confidential documents would have the salutory effect of awakening Executive officials to the fact that they are improperly classifying information that the public has a right to know. Further more, it would restore the original sound premise of Executive Order No. 10501that documents are presumptively unclassified and therefore public property. There is ample precedent for such a move. The 1953 Executive order completely eliminated the category of "restricted"; we propose a similar wholesale elimination now as an interim measure. Our proposal would provide that the head of an agency, and only that official, could prevent the declassification of a particular document if he had compelling reasons to support his conclusion. Beyond this interim step, we propose that material be divided into three cate gories: (1) Material which may be protected through criminal sanctions. This material, if made public, would create an immediate danger to military operations and would be of no value in permitting citizens to render an informed judgment on public issues. The only material, as far as we can tell, that falls into this category is: (a) Present or future tactical military operations, (b) Blueprints or designs of advanced military equipment; and, (2) Material which may be protected by the Government from public disclosure only through the use of administrative sanctions such as discharge from employment.-This material would be limited to data on the private lives of particular individuals, and information on current diplomatic negotiations, crisis deliberations or covert intelligence operations. While material concerning the lives of particular individuals may remain in this category without the imposition of time limitations, all other material in this category must be made publicly available after a relatively short period-1 or 2 years. (3) Material which must be made available to the public.-All material not covered by (1) or (2) above. It is important to stress, as a paramount principle, that no information may be kept secret if it would be of value in permitting citizens of the United States to render an informed judgment on public issues. Many examples of such information come to mind that would superficially seem to justify a classification. For example, the plans for the landing at the Bay of Pigs, the facts surrounding the Tonkin Gulf incident, the American invasions of Laos and Cambodia all represent situations where the needs of the political process are overriding. It is the American public's right to know if an invasion of Cambodia is planned so that it can be debated in the public arena. Similarly, the public should know the competing considerations relevant to procuring a new weapons system so that it can properly decide whether to spend the billions required. The point I am making was pointedly expressed by the late President Kennedy who, in recalling the Bay of Pigs fiasco, lamented to a New York Times editor: "If you had printed more about the operation, you would have saved us from a colossal mistake." If the kind of standard of secrecy which we suggest is adopted, perhaps the public can help its Government avert similar "colossal mistakes" in the future. We think that these criteria and categories can serve as a guide to overhauling the present classification system. But the other difficult problem is devising procedures to govern an improved classification system. Presumably, the elimination of the confidential and secret categories will do much to alleviate problems of administration. But the questions of whether to classify a document and for how long will remain. First, we suggest that save in exceptional circumstances, classification can be made only by the agency head or a departmental officer specifically designated by him to perform this function. There is precedent for this limitation in cases where the Government invokes a state secrets privilege. See, e.g., United States v. Reynolds, 345 U.S. 1 (1953). One of the primary causes of the existing abuses is the proliferation of individuals authorized to classify, which is completely inconsistent with the intent of Executive Order 10501. Second, we maintain that all classified material should be presumptively declassified within a relatively brief period of time-perhaps 2 or 3 years. At that point, the burden would be on the agency to make a clear and convincing showing that the document should remain classified. As to the problem of who would determine whether a document remains classified, we are not particularly enthusiastic about proposals for a declassification board. Nevertheless, we think that such an independent tribunal-composed of public members confirmed by the Senate-would be far preferable to existing ex parte and ad hoc practices of declassification. The origins of today's heavy handed Government classification program were rather modest. The laudable intention was to protect the physical security of the United States from direct military threats. But as the concept of "security" expanded, so did the notion of what information must be kept secret in order to preserve that security. In the process, classification has become a device to deny the public access to information about many matters necessary to an informed citizenry in a democratic country. The time has come to reserve that process and to reassert democratic control over the national destiny. And the Congress, where the voice of the people is most directly heard, is the appropriate place to begin. (The brief previously referred to follows:) Motion INDEX Interest of Amicus Curiae Introduction I. The well established First Amendment prohibi- PAGE 1 2 2 6 A. The Importance of the Ban on Prior 6 B. Any Acceptable Constitutional Test Pre- 11 C. The Dissemination of the Historical Ma- II. The District Courts were without jurisdiction III. The only statute relied upon by plaintiff, 18 A. The Act Does Not Authorize Prior Re- 19 26 straint of the Press 26 ii B. Section 793 Does Not Authorize Relief C. If Section 793 (e) Is Applicable, It Is Un CONCLUSION constitutional AUTHORITIES CITED: PAGE 28 30 32 Cases: ACLU v. Radford College, 315 F. Supp. 1356 (D.D.C. 1970) Associated Press v. Walker, 388 U.S. 130 (1967) Beckley Newspaper Corp. v. Hanks, 389 U.S. 81 (1967) Brooks v. Auburn University, 412 F.2d 1171 (5th Cir. Caldwell v. United States, 434 F.2d 1081 (9th Cir. 1970) 8 U.S. 39 U.S.L.W. 4630 (June 1, 1971) 7 Craig v. Harney, 331 U.S. 367 (1947) ... 9 9 .21, 22, 24, 25 Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) Debs, In re, 158 U.S. 564 (1895) Fortune Society v. McGinnis, 319 F. Supp. 901 (S.D. Garrison v. Louisiana, 379 U.S. 64 (1964) 9 18 Goldsmith v. Sutherland, 426 F.2d 1395 (6th Cir.), cert. denied, 39 U.S.L.W. 3258 (1970) 20 Gorin v. United States, 312 U.S. 19 (1941) 31 |