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The First Amendment and National Security University of Miami Law Review Volume 43 Number 1 Symposium: Foreign Affairs and the Constitution: The Roles of Congress, the Article 5 President, and the Courts 9-1-1988 The First Amendment and National Security Floyd Abrams Henry Mark Holzer Don Oberdorfer Richard K. Willard Follow this and additional works at: https://repository.law.miami.edu/umlr Part of the Constitutional Law Commons, and the National Security Law Commons Recommended Citation Floyd Abrams, Henry Mark Holzer, Don Oberdorfer, and Richard K. Willard, The First Amendment and National Security, 43 U. Miami L. Rev. 61 (2015) Available at: https://repository.law.miami.edu/umlr/vol43/iss1/5 This Transcript is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. The First Amendment and National Security FLOYD ABRAMS* HENRY MARK HOLZER** DON OBERDORFER*** RICHARD K. WILLARD**** I. HENRY M ARK HOLZER ................................................ 61 II. FLOYD ABRAMS ...................................................... 67 III. RICHARD K. W ILLARD ................................................. 70 IV. DON OBERDORFER .................................................... 74 V. REBUTTAL STATEMENTS ............................................... 78 A. Henry Mark Holzer ............................................... 78 B. Floyd Abrams ..................................................... 78 C. Richard K. Willard ................................................ 80 D . Don Oberdorfer ................................................... 81 VI. QUESTIONS AND ANSWERS ............................................. 81 I. HENRY MARK HOLZER When we talk about national security or national security inter- ests, we are referring to the government's legitimate concern with defending itself against violent overthrow or subjugation by domestic subversion or external aggression. Indeed, the term "national defense" derives meaning and texture from cases interpreting the Espionage Act.' I want to remind you at the outset that the title of the panel is * Floyd Abrams is a partner in the New York law firm of Cahill, Gordon & Reindel. He has taught courses at Yale Law School, Columbia Graduate School of Journalism, and Columbia Law School. He has argued many cases relating to freedom of the press before the Supreme Court and has received numerous awards for his work. He is also the author of numerous articles in newspapers, magazines and professional journals. ** Henry Mark Holzer is a faculty member at Brooklyn Law School where he has taught constitutional law courses, appellate advocacy, and legal ethics. Prior to teaching, he was in private practice, specializing in constitutional, administrative, and general appellate law, where he was involved in many precedent-setting cases. Professor Holzer is the author of numerous books, articles and essays on a variety of legal issues. *** Don Oberdorfer is a Pulitzer Prize winning reporter for the Washington Post. He is the Post's Diplomatic Correspondent assigned to the State Department. He taught at Princeton University as the Ferris Professor of Journalism in 1977, 1982, and 1986. **** Richard K. Willard is a partner in the Washington, D.C. law firm of Steptoe & Johnson. He served as Assistant Attorney General in charge of the Civil Division of the U.S. Department of Justice, 1983-1988. He also served as a judicial clerk for Justice Harry A. Blackmun of the, Supreme Court of the United States and Judge Anthony M. Kennedy of the United States Court of Appeals for the Ninth Circuit. 1. Ch. 645, §§ 793-794, 62 Stat. 736-37 (1948) (codified as amended at 18 U.S.C. §§ 793- 794 (1982 & Supp. IV 1986)). UNIVERSITY OF MIAMI LAW REVIEW [Vol. 43:61 "The First Amendment and National Security." Therefore, there are a lot of things that we will not talk about, such as loyalty tests, travel restrictions, domestic surveillance, and the acquisition of information. Rather, we will speak about the disclosure or the dissemination of material as it relates to a first amendment right of free speech and press.2 Indeed, because the topic is the first amendment and national security, I am not going to be talking about things like dirty pictures, but rather I am going to be talking about things as a matter of survival. The United States of America has national security and national defense concerns because the world in the 20th century, as well as in the foreseeable future, is an extremely dangerous place. There are people out there who want to hurt us-from the Soviet empire and the Iranian fanatics to freelance gangsters like Qadhafi and Abu Nidal. The nondisclosure aspect of our national security and national defense concerns is directly related to our survival. Many reasons are given for our espionage laws, and for our official secrets and acts. Our allies will not deal with us, unless they can rely on us. When you exhaust the laundry list of practical concerns-and it is a long one-it comes down very simply to a question of national survival. Yet despite certain disclosures which actually and potentially threaten our survival, there are all sorts of people with differing motives who wish to reveal, and who have revealed, a variety of information to various recipients. They are spies like Colonel Abel, 3 self-styled patriots like Daniel Ellsberg,4 journalists like Woodward,5 traitors like the Walk- ers6 and the Rosenbergs,7 zealots like Pollard,8 former government 1 2 1 3 employees like Pelton, 9 Snepp,10 Morison, II Turner, and Agee. If 2. U.S. CONST. amend. I. 3. Rudolf Abel, convicted of espionage activities in the United States, was given to the Soviet Union in exchange for downed American U-2 pilot Gary Powers in 1962. See Abel for Powers, TIME, Feb. 16, 1962. 4. While employed by a Defense Department consultant, Ellsberg leaked the Pentagon Papers to a reporter for the New York Times. See Abrams, The Pentagon Papers a Decade Later, N.Y. Times, June 7, 1981, § 6 (Magazine), at 25. 5. See infra note 34 and accompanying text. 6. John, Arthur and Michael Walker, and Jerry Alfred Whitworth were participants in the "Walker Family Spy Ring," which sold classified U.S. Navy information to the Soviet Union. See, e.g., United States v. Whitworth, 856 F.2d 1268 (9th Cir. 1988); see also Spies Come to Judgment, U.S. NEWS & WORLD REPORT, Nov. 11, 1985, at 13. 7. See infra note 22 and accompanying text. 8. Jonathan J. Pollard, a former United States naval intelligence analyst, was sentenced to life in prison, in 1987, for espionage activities he performed on behalf of Israel. See Jay Pollard'sPeculiar Tale, U.S. NEWS AND WORLD REPORT, June 1, 1987, at 23. 9. See infra note 59 and accompanying text. 10. See infra note 39 and accompanying text. 19881 FIRST AMENDMENT AND NATIONAL SECURITY 63 you like, you can put Agee on the list of traitors. They are politicians like Pat Leahy, 4 or, as I like to think of him, "Leaky" Pat Leahy. Their motives vary: anti-Americanism, pro-communism, polit- ical advantage, "scholarship," power, ego, greed, and fame. The information released runs the gamut: codes, surveillance, covert projects, atomic bomb secrets, technical information, reports like the Pentagon Papers,15 and something I will come back to called the Spe- cial Navy Control Program.1 6 The recipients of all of this information are usually our enemies, ultimately the USSR, and, of course, some- times even our allies. How does it work? First, there is acquisition. A prospective dis- closer may somehow obtain material either illegally, or legally, through employment. In other words, he steals it, or he gets it from a thief. At this point in the scenario, it is a general criminal law prob- lem. The motive may, or may not, mitigate the theft, but the first amendment does not yet approve of stealing. I have not seen the advance sheets, nor have I read some of what our distinguished Supreme Court Justices have said on the subject lately, but as of yes- terday, at least, the first amendment did not protect stealing. Today, however, we are not concerned with acquisition. The second stage is that the government sometimes learns that something is about to be disclosed,, as in the Pentagon Papers situa- tion. At that point, the issue of prior restraint arises. I will address that in a few moments. The third stage is disclosure. Disclosure to whom? Disclosure may be to the KGB or the GRU, to the resident at the Soviet Consu- late, to the New York Times or the Washington Post, to the Daily Worker or Newsweek Magazine, to Israel, or Dan Rather. Because a Julius Rosenberg loves communism, or because a Pat Leahy wants to be a big shot, or because a Philip Agee hates America, or because the Walkers need money, we lose secrets and become even more at risk. 11. Samuel Loring Morison, a former military intelligence analyst, was convicted for violation of the Espionage Act for the unauthorized sale of classified government documents to a private British magazine. See United States v. Morison, 844 F.2d 1057 (4th Cir. 1988), cert denied, 109 S. Ct. 259 (1988). 12. Stansfield Turner, a former Navy Admiral and former Director of the CIA under President Carter, authored SECRECY AND DEMOCRACY: THE CIA IN TRANSITION, which describes his views of the CIA. 13. See infra note 40 and accompanying text. 14. Patrick J. Leahy, a Democratic Senator from Vermont and former vice-chairman of the Senate Intelligence Committee. 15. See New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam) (commonly referred to as the Pentagon Papers case). 16. See infra note 21 and accompanying text. UNIVERSITY OF MIAMI LAW REVIEW [Vol. 43:61 We do have somewhat of an arsenal to protect against harming America's national security by disclosure of sensitive information.
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