Repression by Lawsuit

THE NEW YO 'K TIMES, THURSDAY, FEBRUARY 16, 1978 Repression By Lawsuit By Anthony Lewis BERKELEY, Calif., Feb. 15—On the ance — which is surely expresso 01 White and enforced, as a condition of Gov- House tape of June 23, 1972— the kind the. First Amendment wa in- ernment employment. the one that finally forced his resigna- tended to protect. tion—Richard Nixon told H. R. Halde- American freedom often depends on But the C.I.A., and now the Jus ce whistle-blowing by people who are not man why they could expect Richard Department, argue that what the k so nice. It may take a disaffected Deep Helms, the C.I.A. chief, to cooperate on says does not matter, and neither s Throat to expose the abuse of official 'Watergate. "We protected Helms from the First Amendment. That is bec e power. And no one can doubt that .one hell of a lot of things," he said. Mr. Snepp, like other employees of there has been abuse in intelligence When the Senate Intelligence Com- agency, signed an agreement to ay agencies. mittee asked what "things," Mr. Nixon nothing about its classified work th- Attorney General Bell, explaining described one episode. Mr. Helms had out getting its permission first. e the decision to sue Frank Snepp, said come to him about a book that a for Government suit claims damages f •m he just wanted to find out from the mer C.LA. employee planned to pub- Mr. Snepp—all his royalties— or courts whether secrecy "contracts" lish, he said, and he agreed to legal breaking the promise. were valid. But the Attorney General action against it The problem was Why didn't Mr. Snepp submit is' should not so glibly go to court when turned over to John Ehrlichman, who manuscript for review? • If he c d sensitive interests of free expression approved the C.I.A.'s legal strategy. have expected C.I.A. censors to at are at. risk. As the late Alexander Those were the political origins of the book reasonably—to object onl to Bickel said, freedom is safer when we what some think was the worst defeat disclosures that would really threa en do not litigate such questions. suffered by the First Amendment in re- grave security interests -- then he The C.I.A. naturally pressed for legal cent years. Mr. Nixon's Department of would have had little excuse. But is- action against Frank Snepp. But it is Justice got an injunction against the tory gave him no reason to ct the very function of the Attorney Gen- -fnrmer C.I.A. employee, Victor Mar- such restrained behavior. eral to resist pressure of that kind un- chetti. The C.I.A. censored his book. In the case of the Marchetti b k, less he is convinced that the national And Mr. Marchetti was ordered to the C.I.A. first tried to delete 339 p security is imminently threatened, He clear with the agency before writing sages—some of them of the most v- has to have the courage, and the wis- any more about its classified activities ial character, One reported that r. dom, to say no. for the rest of his life. • Helms, In a meeting of the Natio al The dangerous precedent of the Mar- Security Council, had mispronounc chetti case is now being invoked the name of the Malagasy Republ c. against another ex-C.I.A. man, Frank The decision in the Marchetti c Snepp, and his book. This time the by the. U.S. Court of Appeals for t e' Justice Department is suing for a life- Fourth Circuit, gave the C.LA. alm t .time injunction and damages. That complete censorship discretion. Agen y such a case has been brought at all is officials did not have to prove a y reason for concern. That it was likelihood of actual harm to security if brought by Jimmy Carter's Justice De- something was published, the opini n partment is reason for despair—or so said. It was enough for them to sh it seems to one who thought this Ad- that an item had been classified, h ministration had a commitment to civil. ever technically. They were entitled o liberty. "a presumption of regularity."• Mr. Snepp's book, "DeCent Interval,' Moreover, it took three years for t e is about the last days of the American Marchetti case to wind its way throu presence in Vietnam. He details in- the courts. Thus Mr: Snepp, if he h competence and deception on the part submitted the manuscript, would ha e of United States officials and argues faced 'very great uncertainty abo t that they betrayed. thousands of South when or in what form the book cou Vietnamese who had cooperated with appear. The relevance of Its critic's the C.I.A. or the American military. might have been lost. Mr. Snepp took care not to disclose Of course it is wrong to break genuine secrets, such as the names of promise. But not every moral fault s agents; in fact, the Director of Central legally punishable, or should be. Government may use moral press including secrecy oaths; to try to kee ABROAD AT HOME employees within desired bounds. B it does not follow that such promis Intelligence, Stansfield Turner, termed are legally enforcible as "contracts.' him "very circumspect." His book deals: The Constitution limits what sort with Government policy and perform- oaths may be extracted from peopl .

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