United States v. Snepp
The Making of a Landmark
First Amendment Decision
by the Supreme Court
Shortly after breakfast on February 22, 1980 Mark Lynch called from the ACLU’s law offices on Capitol Hill to give Frank Snepp the bad news. “Are you sitting down,” he asked his client with not a hint of his usual good humor. And no wonder: The U.S. Supreme Court had just ruled on Snepp’s long running legal battle with the government, and it was a government sweep all the way. Not only had the ex-CIA agent been ordered to hand over to the U.S. Treasury all profits, past and future, from his Agency memoir, Decent Interval; he’d been saddled with a permanent gag order, obliging him to submit to CIA censors anything he might write about his professional past or its emotional fallout, classified or not, fiction or non-fiction, for the rest of his life.
Draconian as these penalties were, however, they were just part of the injury inflicted. In addition to relieving Snepp of his freedom of speech and last red cent, the Court found him guilty of “faithlessness” to the CIA, even though the government had never charged him with publishing any secrets. It accused him of writing his book “surreptitiously,” even though the CIA had tracked his every move. And in its most excessive finding, the Court declared that Snepp had “irreparably harmed” the national security, even though no one had offered any proof to this effect.
Beyond these personal implications, Snepp v the U.S. savaged the First Amendment itself by providing the executive branch and even private industry with a legal rationale for imposing censorship on their employees – thus rewriting the age-old rule against prior restraint that had previously governed the law in this country.
How did the Court reach this bizarre calculus of justice? Certainly not from examining the evidence. For in one of the strangest twists of the lawsuit, the Court rendered its judgment summarily, without allowing the defendant’s lawyers, or the government’s, to present any oral or written briefs on the case.
Breaking with the Past
For Snepp himself, the ruling was not only crippling but deeply disillusioning, for he was not a renegade ex-spy given to blowing secrets (as former CIA analyst-turned- author Victor Marchetti had done) or agents names (in the manner of ex-CIA officer Philip Agee). He had believed and continued to believe that the nation needs the CIA, even covert action, albeit under strict rules of accountability.
It was in fact Snepp’s orthodoxy that had first made him attractive to the Agency. He’d been recruited out of Columbia University’s School of International Affairs in 1968 and sent to Vietnam a year later precisely because he was possessed of a southerner’s conservative streak and a sense of hierarchy that seemed to make him the ideal “good soldier.” And though he wasn’t particularly taken with the Vietnam war, he was too inured to the chivalric ideals of his southern upbringing to presume to protest.
In Vietnam his conformity won him plaudits, rapid promotions, access to the Agency’s best intelligence sources, invitations to the Ambassador’s table and responsibility for preparing the CIA Station chief’s strategic estimates for Washington. Inevitably, with so many roles to play, he occasionally let his true colors show, as his CIA fitness reports demonstrated. Consider this particularly critical entry: “Sometimes impatient with bureaucracy” his superiors wrote of him early in his first tour of duty. “In his personal relationships both on and off the job, [he] is more idealistic and involved than most.”
Normally such notices would doom a career in the CIA where team-play is everything. But both Ambassador Graham Martin and CIA Station chief Tom Polgar quickly embraced Snepp as a protégé and indulged his lapses because when he did their bidding, he did it with the zeal of a devoted son.
Some of his more fastidious colleagues deplored this penchant for pandering. But whenever any of them dared upbraid him for it he had an easy rationalization, pointing out that if you’re ever to have enough clout to achieve any good tomorrow, you have to make compromises today.
Such of course is the practiced bureaucrat’s standard line of march, and Snepp might have pursued it all the way to the bureaucrat’s just reward – total moral decrepitude – except for the intervention of the North Vietnamese army. But as Hanoi’s forces closed round Saigon with terrifying inexorability in early 1975 the lies and wishful thinking that had sustained American policy in Vietnam for so long were exposed for what they were. No longer could anybody pretend that Kissinger’s peace, the ceasefire agreement negotiated three years before, had won any more than a “decent interval” before the inevitable Communist takeover.
Obvious though this fact was, Snepp’s superiors refused to concede it. Both Martin and Polgar remained insistent to the bitter end that the Saigon regime could be held together long enough for a last minute political fix. Worse, mired in their illusions, they let evacuation planning idle along, so that on the final day itself there wasn’t even a master list in the embassy of the Vietnamese who were in grave peril and desperately needed to be rescued because of their ties to the Americans.
During the last terrible weeks of the war Snepp worked frantically to disabuse the ambassador and his men by churning out one alarmist report after another, echoing back to them the dire warnings he picked up from his informant contacts. But so obsessed did he become with this self- appointed mission that he lost sight of a profound personal responsibility. Two days before the collapse, a Vietnamese woman who claimed to have borne his son called to beg him to help the two of them escape the country. But Snepp was too busy to help just then, too busy writing another useless report for the ambassador. So he told her, “Call back in an hour. I’ll help you then.” But when she called back, Snepp was down in the ambassador’s office, briefing him on the report, and the woman killed herself and the boy.
As the chopper lifted off the roof of the embassy on the night of April 29, 1975 Snepp gazed stupefied at the thousands of Vietnamese raging outside the embassy walls below, waiting not so patiently for the help that would never come. Till then, the war had been for him a B-52 strike from sixty thousand feet up, the consequences of his actions only barely visible through the haze of euphemism and illusion he’d conjured to insulate his conscience. But that night, in the wake of the woman’s death and that of the child, there were no euphemisms to disguise what he and his colleagues had done and left undone. They’d betrayed their loyal Vietnamese friends – and those who’d dealt most closely with them – young CIA and State Department officers from the trenches – now had blood on their hands, for it was they who in their daily contacts had convinced those unfortunates to trust us.
Back at CIA headquarters Snepp roamed the halls, trying to prompt an official assessment of the evacuation, desperately seeking to shame the Agency into rescuing those who’d been left behind. It was not entirely a selfless act. Nearly five years Snepp had been out there on the cutting edge in Indochina, doing things a Mafioso would blush at, and rationalizing them by pretending that truth was somehow being served. The Quiet American act – only he’d believed it. And now he wanted somebody to answer for the disaster that had given the lie to the rationale and left him feeling like a bloodsotted capo – except that a capo wouldn’t have left his soldiers stranded as we had.
How else to put it? He wanted absolution, and that meant somebody in the upper reaches of the bureaucracy had to admit guilt too, lift some of it from his shoulders and do penance alongside. But Ford, Kissinger and all the others who’d contributed an illusion or two weren’t about to bend a knee or let anyone else do so either — not in the Autumn of 1975, not with Congress already rummaging through the Pandora’s box of past Agency sins and Director Bill Colby trotting up to Capitol Hill almost daily to make apologies and his predecessor, Richard Helms trembling out there in Teheran where he was now ambassador because in attempting to protect his own reputation he’d been obliged to lie under oath to Congress about past CIA dirty tricks in Chile.
Nobody wanted any more mea culpas, no public breast-beating by the penitents from Indochina. Be quiet! Snepp was told. Be quiet and forget!
But he couldn’t. So he advised the front office that he’d write a book about the whole mess if they didn’t do an autopsy themselves on the evacuation.
They wagged their fingers, warned him no active employee can speak or write ill of the Agency or his superiors publicly – and then began canvassing the ranks to see if he’d dared to contact a publisher. Under threat of dismissal a former girlfriend of his, a CIA map maker, conceded to her Agency inquisitors that Snepp had approached Random House. But because of a blemish on her personnel record – an admitted affinity for marijuana – they chose not to believe her and pigeonholed the one piece of intelligence that might have enabled them to stop his book even before it was close to becoming a reality.
Meanwhile Snepp discovered that Martin, Colby and his lieutenants were trying to rewrite Saigon’s final horror story to their own advantage by leaking self-serving versions to the press, often with generous sprinklings of classified information whose very whisper outside official channels could mean the deaths of abandoned Vietnamese. If Snepp had any reservations about the moral choice confronting him, this resolved them – definitively.
Writing the Confessional
“Frank Snepp…has resigned from the Agency rather than agree to submit for review a book that he is writing.” So ran the inter-office CIA memo signaling his departure in late January 1976. It’s tone was accusatory, but its message accurate. Just a few days before, CIA lawyers and Security men had tried to force Snepp to sign an affidavit pledging them his manuscript under any circumstances. He had categorically refused. The only commitment they could wrench from him was a “termination secrecy agreement” not to publish anything secret or confidential. That obligation he would have assumed even without this formal covenant. The last thing Snepp meant to do was further imperil the Vietnamese left behind.
CIA officials seemed to understand this. In all the four hundred pages of cables and memoranda they wrote about Snepp’s book prior to its publication, the worst they said of him was that he might be critical of the ambassador and the CIA.
Still, that was enough. During the eighteen months it took Snepp to complete the manuscript, he was stalked like an enemy spy, his name added to a CIA watch-list for such hostile agents. Three CIA officers were assigned to monitor his progress. Two good friends of his, a husband and wife who’d once worked for the Agency, were persuaded to supply the CIA with tapes and notes of their conversations with him and even pieces of manuscript which he let them read even as they slipped him restricted information from CIA files. And three times the CIA asked the Justice Department to intervene to stop his book. The Attorney General refused on every occasion, since the Agency could offer no proof that what he was writing could irreparably harm the nation’s security – the legal requirement for restraining orders recognized by the Supreme Court in the 1971 Pentagon Papers case.
But the Agency wasn’t to be deterred. Ten months after Snepp’s resignation, CIA lawyers dusted off and sent to him an employment agreement he’d signed his first day on the job in 1968 but which he hadn’t seen since then and had long ago forgotten. In their covering letter they claimed that it embodied his current obligations and required him to turn all his writings, secret and otherwise, over to the CIA’s censors.
Snepp was incredulous. The pledge he’d signed on leaving the Agency was far narrower, obliging him to clear only secrets. Moreover, as he read through the fine print of this earlier document, it became apparent that the Agency itself had violated it by refusing to let him vent his grievances within official channels, as one of its provisions required. Conclusion: if the Agency wasn’t bound by this piece of paper, neither was he.
Even so, Snepp did try to placate CIA officials by offering to let them review his manuscript informally, so they could be satisfied that he meant to blow no secrets. But one of those assigned to his case said this wouldn’t suffice – that it wasn’t the threat of blown secrets but the specter of embarrassment that concerned them.
Not long afterwards, the Agency’s new director, Stansfield Turner, summoned Snepp to a meeting and demanded that he surrender the manuscript forthwith or sign a new secrecy agreement promising to do so. Snepp came away deeply suspicious. The Agency seemed to be trying to change the rules in the Fourth Quarter to recoup a losing game. In a letter to Turner, he said no.
In the meantime, Snepp and his Random House editor, Bob Loomis, not realizing that their association had been compromised months before, continued to conduct all their contacts sub rosa, in out-of- the-way city parks and Greenwich Village hideaways so no one could link them. Despite the government’s later claims, this cloak-and-dagger routine betokened no disrespect for the law, but rather Snepp’s well-founded belief that even with the law on his side there was nothing to keep the CIA from beating up on his publisher. Indeed, back in 1964, when Random House was preparing to bring out a ground-breaking work on the CIA, Ross and Wise’s Invisible Government, its offices had been burglarized and its editors threatened by operatives from Langley. Later, when the company’s subsidiary Knopf was about to publish Victor Marchetti’s own CIA memoir, Agency officials had stolen the manuscript, obtained a restraining order and then deliberately over-censored the book, cutting out perfectly harmless material (as they admitted in a brief on the case) so they’d have extra bargaining chips to play against him in court. Neither Snepp nor his editor wanted to risk a replay. Hence, their determination to keep collaboration under wraps until publication.
Snepp’s book, Decent Interval, appeared amid massive publicity in November 1977. The timing couldn’t have been worse. Director Turner was in the process of firing 800 surplus employees, and he quickly concluded that any number of them might take out their resentments in print if an example weren’t made of Snepp. So he urged the Justice Department to reconsider mounting a lawsuit. The new attorney general, President Carter’s old Georgia crony Griffin Bell, agreed.
The government‘s charges against Snepp amounted to a Chinese menu of mismatched law. Though prosecutors conceded there were no secrets in his book, they accused him of breaching a secrecy agreement – not his last one, but his first one as if no other existed. To be on the safe side, they also insisted that, whatever agreement existed on paper, Snepp was implicitly obligated, as a matter of trust, to submit all his writings for clearance, even though no such obligation had ever been mentioned to him or anyone else in the Agency. And finally, to justify a gag order against him, they argued that his unauthorized book had done irreparable harm to the national security, not by compromising secrets, but by compromising the “appearance” of reliable CIA security – a transgression which they claimed (without offering any proof) had frightened off a number of our spies abroad.
Confusing? You bet. Nothing like the government’s case had ever been seen in the annals of American law. There were no legal precedents for any of allegations against Snepp, let alone for the penalties demanded.
The drumfire that preceded the trial was enormous. Turner and the CIA planted stories in the press and Congress that Snepp had slipped into print “surreptitiously,” that he’d falsely promised his manuscript to the Agency, that the Agency had made no attempt to monitor his activities, and that the identity of his publisher had never been known. At a press conference President Carter himself linked Snepp by innuendo to people guilty of “revealing utmost secrets.”
The final nail was driven in his coffin just days before the trial when another ex-CIA officer, John Stockwell, published an indiscreet anti-CIA expose of his own and declared himself ready with “Snepp, Marchetti and Agee” to bring the Agency to heel. If the CIA needed proof for its jeremiads about leaks and leakers, Stockwell provided it. Even the most even-handed judge might now have been persuaded that an example had to be made.
Snepp’s judge, a seventy-two year old Virginia conservative named Oren Lewis, was neither evenhanded nor in need of any such persuading. Before examining one shred of evidence he announced to Snepp’s lawyers that they’d undoubtedly want to know how to get to the Federal appeals court in Richmond – “just take I-95 and go south.” Then in two days of stormy hearings he ruled out a jury trial, arbitrarily redefined the charges to suggest that Snepp had published secrets, dismissed his termination secrecy agreement and the First Amendment itself as irrelevant to the case, and on twenty- seven different occasions cut short his lawyers’ questioning by howling “Objection sustained!” even before the government’s attorneys had raised an objection.
And when time came for Lewis to consider the alleged damage Snepp had done, he declined to let the defendant’s lawyers pry from the government’s star witness, CIA director Turner, whether it was Decent Interval or something else (like Agee’s or Stockwell’s disclosures) that had unsettled CIA sources, if indeed any had been unsettled. In the end Lewis gagged Snepp, directing him forever to submit to CIA censorship, and ordered all profits from Decent Interval to be surrendered to the US Treasury, just as the government wanted.
Long Road to Disaster
Snepp’s lawyers immediately filed an appeal, and over the next year and half pursued it all the way to the U.S. Supreme Court. At one point the government’s attorneys, fearful that they might lose what they’d gained, offered to guarantee Snepp forty percent of his profits if only he’d give up the legal fight. He said no. He’d been too battered, his honor called into question too often, and he was fearful that any compromise might discredit the message by discrediting the messenger, providing his former CIA colleagues with a pretext for turning their backs on the abandoned Vietnamese forever.
Meanwhile his isolation deepened. Snepp’s father, a state judge whose hopes for advancement to the federal bench had been dashed by congressional reaction to the case, kept him at arm’s length. Agency acquaintances, who before and after the trial had voiced their support in quick calls from pay phone booths, suddenly grew silent for fear of contracting guilt through association. And worst of all, Snepp’s long suffering helpmate, a black girl from Antigua, who’d kept his body and soul together during the months he’d been writing, broke off their relation out of concern that she’d become too much of a burden to his already overtaxed emotions.
For awhile afterwards, a variety of courtroom groupies floated into Snepp’s life, attracted by his dimming aura of celebrity, and just as quickly floated out again, after discovering that this “celebrity” was dirt poor, living on small loans from friends as his book royalties drained away into an escrow account set up to keep them safe for the government pending the outcome of the appeal.
By the time the Brethren got around to considering the case, the political tides had turned inauspicious. Philip Agee had outraged just about everybody by publishing two more books rife with agents’ names, and because of a change in the national mood, precipitated by the Iranian hostage crisis and the Soviet invasion of Afghanistan, the public had grown abundantly solicitous of the CIA, to the point of treating all its critics like bad apples fallen from the same tree. To make matters worse, the Supreme Court itself had just come under scathing attack in a newly published book, The Brethren, based on leaks from the Justices’ own private clerks. Six of the indignant nine began scrabbling about for a way to serve warning to their own leakers. The case against Snepp was it.
Shortly after the Court’s ruling, and using the legal authority it conferred, the government brought Snepp-type suits against Stockwell and Agee for their unauthorized disclosures. Stockwell, having shrewdly spent his book profits, pleaded financial hardship and won an out-of-court settlement that spared him the burden of paying any of his previous earnings to the government. Agee likewise escaped penury because the judge in his case decided there was now abundant evidence that the CIA was picking only on its critics, even though various “loyal” ex-employees had published unauthorized books of their own. To try to convey an impression of even-handedness, the government then sued William Colby for his memoir, Honorable Men which he’d passed to his publisher before getting it cleared and which he’d allowed to slip into French translation with many secrets sprinkled throughout. But like Stockwell, Colby struck a sweetheart deal with the government that all but got him off the hook financially.
In the meantime, the mainstream press tried to convince itself that the Court’s ruling against Snepp was but one man’s misfortune with no relevance for the First Amendment or anyone outside the CIA. But such confidence was misguided. In March 1983 the Reagan Administration used the precedent to justify extending official censorship to tens of thousands of non-CIA bureaucrats – a gag regime that has been perpetuated by subsequent presidents — and two years later the Supreme Court itself cited Snepp as the basis for a ruling that made it harder for everyone to use the Freedom of Information Act.
Most astounding of all, private companies, like the cigarette manufacturer Brown and Williamson, have used the Snepp decision to enforce non-disclosure agreements with their own employees to keep potential whistleblowers among them from speaking out. They’ve also turned it against the media giants like 60 Minutes and Dateline to discourage them from cooperating with such whistleblowers – at pain of being sued for “tortious interference,” that is, interfering with the execution of a legitimate “contract” (the employee’s non- disclosure agreement).
On a more theoretical level, the Court in Snepp lowered the barrier to prior restraint in all First Amendment cases. Previously, the Court’s ruling in the Pentagon Papers case of 1971 had been seen as the controlling precedent in this area of law, and one that effectively ruled out prior restraint – the use of judicial gag orders to keep certain speech from occurring – except when the government could concretely demonstrate a real and immediate threat of irreparable harm to the nation’s security. But in Snepp the Court declared that such constraints are permissible if a publication merely threatens the “appearance” of reliable government confidentiality. Under this standard, many a secrets-free news story out of Washington could be spiked by the government. Certainly the highly classified Pentagon Papers could be kept out of print. Though no one has ever applied Snepp in this way, directly against the media, the Court’s own ruling limiting the uses of the Freedom of Information Act was based on the “appearance of confidentiality” principle first articulated in its decision against the ex-CIA agent.
(For a chilling first-hand account of the government’s legal vendetta against Frank Snepp – including extraordinary disclosures about how the CIA rigged the case and trampled Snepp’s legal rights and how the Supreme Court itself was railroaded by one of its own members, who happened to be a former intelligence agent, into its devastating final decision, see Snepp’s Irreparable Harm, published by Random House in the summer of 1999.)