Daniel Patrick MoynihanThe President
United States Senate
September 29, 1998
The White House
Washington, D.C. 20500
Dear Mr. President:
I write in my latent capacity as chairman of the Commission on Protecting and Reducing Government Secrecy. In the course of our enquiry it gradually emerged that for all the millions of secrets we create each year we have virtually no law concerning unauthorized disclosure. (The exception being matters covered by the Atomic Energy Act.) We remarked with specific attention to the fact that in the eighty-one years since the enactment of the Espionage Act of 1917, only one person has ever been convicted of passing on classified information (page A-62 of the Commission Report). That person, Samuel Loring Morison, had passed on classified photographs to the British publication Jane's Defence Weekly. The selective action against Mr. Morison appears capricious at best.
The Espionage Act has always been used to prosecute spies, those passing information to foreign powers. The exceptions are exceptional. President Nixon sought the prosecution of Daniel Ellsberg and Anthony Russo for leaking the Pentagon Papers. Their cases were dismissed. But the Reagan administration successfully prosecuted Mr. Morison.
What is remarkable is not the crime, but that he is the only one convicted of an activity which has become a routine aspect of government life: leaking information to the press in order to bring pressure to bear on a policy question.
As President Kennedy has said, "the ship of state leaks from the top." An evenhanded prosecution of leakers could imperil an entire administration. If ever there were to be widespread action taken, it would significantly hamper the ability of the press to function.
The desire for press censorship arises periodically in our republic. It was there in 1917, when Woodrow Wilson asked the Congress to take up what would become the Espionage Act. In his April 2, 1917 address to a joint session of Congress in which he asked for a declaration of war against Germany, Wilson cited spying as an example of the hostile intent of the "Prussian autocracy." On the same day an espionage bill, based on a draft by Assistant Attorney General Charles Warren, was introduced in the House. A companion bill was introduced in the Senate the following day.
It was Wilson's intention that the bill contain a provision which amounted to prior restraint of the press. The provision was in both the House and Senate versions of the bill, but the Senate voted to strike the provision. Henry Cabot Lodge, who originally supported the provision but later thought better of it, announced on the Senate floor that it would be better not to have any bill at all than to allow press censorship (Congressional Record 55, pt. 3: p. 2262, May 14, 1917). President Wilson was undeterred. He wrote a letter to Edwin Yates Webb of North Carolina, the Democratic chairman of the House Conferees, in which he stated "authority to exercise censorship over the Press to the extent that that censorship is embodied in the recent action of the House of Representatives is absolutely necessary to the public safety." To no avail. An espionage act was agreed to, without the censorship provision, and on June 15, 1917, President Wilson signed it into law.
Press censorship has been proposed since then, but never adopted. Ironically, we now have in Samuel Loring Morison a man who has been convicted for leaking information, while so many real spies are discovered but never prosecuted. Begin with the VENONA messages, Soviet spy cables intercepted during World War II and decrypted by the U.S. Army beginning in December 1946. VENONA exposed a network of Soviet agents operating in the United States, including at Los Alamos. Spies, such as Theodore Alvin Hall, who gave away our most sensitive atomic secrets to the Soviet Union, were discovered, yet never prosecuted.
What a different experience from that of Samuel Loring Morison. I have been told, though I do not know it to be true, that his rank - - not too high, not too low - - was a consideration in the decision to seek prosecution. I would hope that in your review of Mr. Morison's application for a pardon you reflect not simply on the relevant law, but the erratic application of that law and the anomaly of this singular conviction in eighty-one years.
Respectfully,cc: The Pardon Attorney
Daniel Patrick Moynihan