The Wages of "Faithlessness"

High court plugs a leak--and gets a flood of criticism

Frank W. Snepp III was one of the last Americans to be evacuated by helicopter from the roof of the U.S. embassy in Saigon in the frantic hours before the city's fall on April 30, 1975. Snepp, then 31 and a senior analyst for the Central Intelligence Agency, with 4 1/2 years experience in Viet Nam, thought the agency's withdrawal planning had been shockingly inept, particularly in that hundreds of local CIA collaborators were simply left behind to meet whatever fate awaited them. After he returned to Washington, where he was awarded the agency's Medal of Merit, he quit to write Decent Interval, a critical account of the CIA's performance during South Viet Nam's final days, published in 1977.

But in making the switch from agent to tattletale author, Snepp made a mistake: he ignored the written pledge that CIA employees make never to publish "any information" about the organization without submitting it for prior review. Last week, in a toughly worded ruling, the Supreme Court slammed Snepp hard for his transgression. By a 6-3 vote, the court ruled that the CIA secrecy pledge is very much a legally enforceable contract. In their terse nine-page opinion, Chief Justice Warren Burger and the other five men in the majority noted that Snepp had "deliberately" violated his "obligation" to his former employer, and that the Government was well within its rights to sue him for breach of contract. Moreover, said the majority, a lower court had acted perfectly properly in ordering Snepp to "disgorge the benefits of his faithlessness." That meant Snepp had to turn over all of the money he had made ($115,000 so far) from Decent Interval.

Snepp, the son of a North Carolina state judge, had signed two secrecy agreements during his eight years with the CIA. But when the CIA demanded to see his manuscript, Snepp refused. He maintained that he was obliged to submit only classified or nonpublic information. And his book, he insisted, contained none--a fact conceded even by the CIA. The agency, which has been troubled by the spy-and-tell books of another former agent, Philip Agee, decided to take Snepp to court to show that the secrecy pledge was not to be trifled with.

In 1978 a federal district court judge in Virginia, Oren Lewis, granted an injunction barring Snepp from writing anything else about the CIA without clearance; Lewis also ordered Snepp to forfeit his "illgotten gains" from Decent Interval. Last year an appeals court was only slightly more sympathetic to Snepp's pleas. It upheld the injunction and gave its blessing to some form of financial penalty--but not to confiscation of Snepp's earnings. Still not satisfied, Snepp decided to appeal to the Supreme Court on the grounds that the prior-clearance requirement impinged on his First Amendment right of free speech.

In its decision last week, however, the majority chose to decide the case as a question of contractual obligations and rejected Snepp's First Amendment argument. The court said that the CIA had a need to impose "reasonable restrictions" on its employees, since confidentiality is "so essential to the effective operation of our foreign intelligence service."

The decision triggered a storm of protest, some of which came from the high bench itself. The three dissenting Justices, John Paul Stevens, Thurgood Marshall and William Brennan, blasted the majority for "the uninhibited character of today's exercise in lawmaking." Stevens, a Ford appointee who has a mixed voting record in freedom of speech cases, wrote that in endorsing the confiscation, the court had fashioned a "drastic" new remedy to enforce "a species of prior restraint on a citizen's right to criticize his Gov ernment." There is an inherent risk, he said, "that the reviewing agency will misuse its authority to delay the publication of a critical work or to persuade an author to modify the contents of his work beyond the demands of secrecy."

Many experts on constitutional law were equally concerned. Columbia Law Professor Benno Schmidt, who believes that the CIA should indeed be able to protect its secrets, pointed out that the Supreme Court's procedure in Snepp was highly unusual in view of its potential impact: the court did not hear oral arguments or request full briefs. Moreover, says Schmidt, Congress has repeatedly declined to impose secrecy obligations on CIA agents, and, until it does, the courts have no business putting judicial sanctions behind Executive Branch secrecy policies.

Schmidt, like other Snepp decision critics, is concerned that the ruling may eventually be interpreted as imposing a "fiduciary obligation" on any Government employee not to reveal confidential information, even when no explicit secrecy pledge is involved. Says Schmidt: "This is a notion that is quite foreign to our system and goes well beyond matters of national security. It would apply to law clerks on the Supreme Court, for instance, or to people in the Interior Department." Ultimately, some fear, the result might be the de facto establishment of something like the Official Secrets acts in Britain and Canada, which are written broadly enough to make it a crime for someone to disclose any government document without permission.

At the very least, many experts say, Snepp could prompt many more agencies to adopt secrecy agreements (at present, the CIA, the FBI and the Defense Intelligence Agency insist on prepublication review, while several other departments and agencies require certain employees not to disclose confidential information). In any case, Snepp is bound to have a "chilling effect" on civil servants who may want to write about wrongs they see in Government. Says Yale Law School Professor Thomas Emerson: "The decision could practically silence all Government employees. And what of all the memoir writers--Kissinger, Nixon, L.B.J.? Will they be sued?"

Justice Department attorneys respond that fears about Snepp's being a loose cannon periling the First Amendment rights of all sorts of people are greatly exaggerated. Eric Richard, a Justice expert on national security questions, says the ruling should give the chills only to those in jobs involving national security "who are out to make a profit" on the information they have. Some court watchers speculate mischievously that one reason the Justices were so eager to lower the boom on Frank Snepp was that they have been irked by The Brethren, the gossipy, inside the Supreme Court book by Bob Woodward and Scott Armstrong; many of the anecdotes about the Justices' professional habits and private foibles came from talkative young law clerks.

As for Snepp, he has just finished a novel about the CIA and John Kennedy's assassination, tentatively called Convergence of Interest. "It is based on fact," he claims, "but not on anything I learned in the agency." Snepp says he has not yet decided whether he should let the CIA see it first.

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The Supreme Court issued two other important rulings last week. One ordered the resumption of federal financing of some abortions. The second hamstrings private university faculties that wish to unionize.

The abortion ruling was actually very limited. The Justices simply voted, 6-3, to let stand, at least temporarily, a January decision by a federal district court that struck down the so-called Hyde Amendment. The court also agreed to hear this spring an appeal of that lower court decision and decide for itself whether the amendment is constitutional. Passed in 1976, after a vigorous lobbying campaign by abortion foes, this law, in its latest form, prohibits the Federal Government from using Medicaid money to pay for abortions for poor people, except when pregnancy puts the woman's life in danger or when she has been a victim of rape or incest. Under Hyde, only some 2,000 to 3,000 women a year obtained federally paid-for abortions. With the new ruling, eligibility is extended to Medicaid recipients whose doctors say that termination of pregnancy is "medically necessary." By some estimates, this could push the number of welfare abortions as high as 470,000 annually.

The ruling on faculty unions, though binding only on New York City's 4,000-student Yeshiva University, will almost certainly brake efforts to organize instructors at the nation's 1,600 private institutions of higher learning. During the past decade, bargaining units have been set up on about 80 private campuses. By a 5-4 vote, the court decided that Yeshiva's teachers are managers rather than employees and thus should not have been granted full union rights by the National Labor Relations Board. (Since the N.L.R.B. has no control over the U.S.'s 1,400 public universities, the 300 or so bargaining units formed at such schools are unaffected by the ruling.) The majority noted that faculty members "effectively" determine curriculum, grading systems and admission standards, all of which are managerial functions. It was unimpressed by the argument that, since professors are largely powerless to do anything about lagging salary scales, rising teaching loads and postponed tenure decisions, they should be classified as employees. The decision was good news for cash-strapped administrators, who fear that unionization could lead to budget-breaking increases in faculty salaries and benefits.

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