defense or foreign policy and (B) are in fact properly classified This is not surprising; as noted, such matters had been treated differently in the original Administrative Procedure Act. The difference now was the availability of procedures, including use of the courts, to review bureaucrats' decisions to deny the release of information. 142 **** From the onset of the atomic age there had been a tension between the defense establishment, as generally defined, and the science community over the nature of secrecy in science. From the time of the Smyth Report, and the arguments of Bethe and others as to the inevitability of the Soviets acquiring an H-Bomb, the level of irritation was not inconsiderable. The scientists said you could not hide nature from the Russians. Now an argument arose about the disutility of trying to hide things from Americans. As noted earlier, the Wright Commission was on to this: The report of the Commission stresses the dangers to national security that arise This aspect of the Wright Commission's report was echoed in a resounding fashion some thirteen years later by another group of eminent persons. In July 1970, a special Task Force on Secrecy, convened by the Defense Science Board and chaired by Dr. Frederick Seitz of Rockefeller University, issued its final report on the steps needed to address problems with the system for classifying scientific and technical information. 144 Responding to questions from the Director of Defense Research and Engineering, the Task Force found first that it was unlikely that classified scientific and technical information would remain secure for as long as five years; more likely it would become known to others in as little as one year through both "independent discovery” and clandestine disclosure. 145 The report went on to focus on the costs of classification, concluding that its effect in inhibiting the flow of information should be considered-and balanced against the benefits—in making classification decisions. After also finding that classifiers' attention should focus mainly on design and production-related matters (such as information on specific manufacturing techniques that might reveal operational plans), as opposed to basic research and “early exploratory" development, the Task Force concluded that, overall, the amount of scientific and technical information classified could be reduced by as much as 90 percent through the exercise of greater care concerning both the scope and duration of classification. Finally, in its most telling passage, the Seitz Task Force wrote that "more might be gained than lost" if the United States adopted "unilaterally, if necessary-a policy of complete openness in all areas of information." (Recognizing, however, that this proposal was not practical in light of prevailing views on classification, it instead recommended adopting a "rigid schedule" for automatic declassification, with a general period of one to five years, subject to exemptions for specified categories.) That nothing subsequently came of this final recommendation speaks more to the "culture" being confronted by the Seitz Task Force and other such entities than the wisdom of the finding-one endorsed by a cross-section of the nation's leading thinkers on scientific and technology issues. **** The apogee of absurdity as regards secrecy came in 1971 when the Nixon administration undertook to enjoin the publication by the New York Times and, subsequently, the Washington Post, of a history of the Vietnam War compiled in the Department of Defense, and soon known as the Pentagon Papers. In June 1996, on the occasion of the 25th anniversary of that seminal event, Max Frankel of the Times recalled what had transpired: Twenty-five years ago today, reporters, editors and owners of The Times stood As Harold Edgar and Benno C. Schmidt, Jr. state the matter in their comprehensive analysis of the espionage laws in the Columbia Law Review (written against the backdrop of the Pentagon Papers litigation), the Government found that there was literally "no law" to prevent publication. The problem, as Edgar and Schmidt make clear in their masterful survey, can be traced to the time of creation-1917—when Woodrow Wilson failed in his efforts to achieve a sweeping ban on publication of defense information. The U.S. espionage laws are, in their words, "in many respects incomprehensible," with the result being that “[w]e have lived since World War I in a state of benign indeterminacy about the rules of law governing defense secrets.”147 The uncertainties surrounding the legislative intent of the 1917 Act (as well as of its most significant amendment, in 1950)148 were to have significant consequences more than half a century later. Edgar and Schmidt note that “[n]o prosecution premised on publication has ever been brought under the espionage laws," and that the abandoned prosecution of Daniel Ellsberg and his colleague Anthony Russo for unlawful retention of defense information "was the first effort to apply the espionage statutes to conduct preparatory to publication."149 As noted, in October 1984, Samuel Loring Morison, a civilian analyst with the office of Naval Intelligence, was arrested for supplying a classified photograph of a Soviet nuclear-powered carrier under construction to Jane's Defence Weekly-which subsequently published the photo. In October 1985, Morison became the first person convicted under the 1917 Espionage Act for an unauthorized disclosure of classified defense information to the press. His conviction was upheld in 1988 and the Supreme Court declined to hear the case. The Morison prosecution remains unique; no other individual has been prosecuted since on such grounds. While the core provisions of the espionage laws have been used with some degree of frequency to prosecute government and defense contractor employees for actual or attempted communication of national defense information to a foreign agent, as well as conspiracies toward that end (thus reaching the conduct of notorious spies such as Aldrich Ames), 150 the laws have proven virtually useless in addressing the more mundane problem of “leaks." And when a body, such as the Wright Commission, has proposed “rectifying" this by broadening the laws' reach beyond the classic case where defense information is provided to foreign spies to also cover unauthorized communications between a government official and the press, it has provoked hostile reaction based on concerns about the impact on free speech and efforts to publicize government misconduct or mismanagement. Thus, a system persists in which the series of executive orders-beginning with Truman's—on security classification carefully instruct government employees not to transfer classified information to any outsiders not authorized to receive it (the U.S. media obviously included), but the system of criminal sanctions designed to back that instruction up proves to be a "paper tiger." Indeed, most of the executive orders on national security information issued in succession since 1951 do not even refer to the espionage laws. And, as in the case of the Commission on Government Security's proposal, Congress is not willing to make unauthorized disclosure of classified information an action subject to criminal sanctions without consideration of the intent of the communicator. Thus, as a former Assistant General Counsel of the CIA concluded (in an unpublished paper cited by Edgar and Schmidt): An individual who simply reveals to the public at large classified data is for all Of course, this was not the only legacy of the Pentagon Papers case. The effort to prosecute journalists for publishing the materials also revealed the deep-seated differences in perspectives concerning the breadth of appropriate classification. Erwin N. Griswold, who had been President Nixon's Solicitor General at the time of the Pentagon Papers case and therefore had the thankless task of preparing and arguing the Government's case before the Supreme Court, summed it up well nearly two decades later: I have never seen any trace of a threat to the national security from the publica- It quickly becomes apparent to any person who has considerable experience with 9. After the Fall It is just four decades since the Report of the Commission on Government Security, the first and, until now, the only other statutory body to inquire into secrecy and security. The Commission Report was thoughtful and in no sense alarmist. Even so, it would have institutionalized the loyalty system through a Central Security Office, and would have greatly expanded the reach of government by making it a crime under the Espionage Act for persons outside of government-read “journalists”—to disclose classified information. Neither measure was adopted. (A third proposal to "make admissible in a court of law evidence of subversion obtained by wiretapping" was never formally adopted, but gradually and partially became accepted practice.) There have been numerous executive orders of differing degrees of consequence, but all fall within the overall statutory and administrative framework of the arrangements put in place during World War I. This system was designed to deal with conflict between nation states, in which the United States had to deal with internal as well as external conflict. To say that the system has not changed appreciably is not to say that it has not degraded. Most of this degradation can be accounted for by recognizable bureaucratic behavior. First one agency; then another agency; then a third agency. First an activity exclusively directed from within the Executive Branch; next the emergence of equally forceful direction from the Legislative Branch. First a considerable degree of public concern at unfamiliar arrangements and activities, followed by familiarity and gradual acceptance. In the years immediately following the Second World War, there was a considerable competition among the Defense Department (and its predecessor) and the State Department and the Justice Department (in the form of the Federal Bureau of Investigation) for primacy in directing what would be called "the intelligence community." In this competition the defense community won out, although the FBI remained a significant participant. Again, in the bureaucratic mode, no significant interest was entirely cut out; redundancy became the norm, especially as the extent of redundancy remained more or less undisclosed. Only the State Department lost relative influence and resources. The secrecy system degraded most significantly in the form of "leaks," that is to say, "unlawful disclosures of classified information," as the Report of the Commission on Government Security put it. These occur routinely, typically in the course of contests within the Executive Branch, or between the Executive and the Legislative. It has become routine for high government officials to lament the dissonance brought on by the momentary inability to remember whether some important fact was learned in a highly classified briefing or from evening television. There is, effectively, no sanction for giving "classified information" to the press, as the term is generally understood. To the contrary, there are perceived rewards accruing to those who do so. (Not to mention the memoirs of presidents and cabinet members!) This "Brief Account" has not attempted to judge either the gains achieved or the losses incurred by the secrecy system that developed over the course of the 20th century. Clearly, there were both. Indisputably, a vast range of contacts with other governments require secrecy while they are relevant. Clearly, covert actions require secrecy while they are relevant. Keeping in mind, however, that by definition others know of these secrets, and not always those we would wish. In a celebrated Cold War gaffe, an American official disclosed the existence, on the territory of a |