1974: CIA-Cult Intelligence: Introduction Victor Marchetti and John D. Marks : The CIA and the Cult of Intelligence
Introduction
by Melvin L. Wulf
Legal Director
American Civil Liberties Union
On April 18, 1972, Victor Marchetti became the first American writer to be served with an official censorship order issued by a court of the United States. The order prohibited him from „disclosing in any manner ( 1 ) any information relating to intelligence activities, (2) any information concerning intelligence sources and methods, or (3) any intelligence information.·· To secure the order, government lawyers had appeared in the chambers of Judge Albert V. Bryan, Jr .. of the United
States District Court for the Eastern District of Virginia, in Alexandria, on the morning of April 18, without having notified Marchetti. The government’s papers recited that Marchetti had worked at the CIA from 1955 to 1 969, that he had signed several „secrecy agreements“ in which he had agreed not to reveal any information learned during his employment , that after he left the CIA he had revealed
forbidden information , that he was planning to write a non
fiction book about the agency, and that publication of the
book would „result in grave and irreparable injury to the
interests of the United States.“
Among the papers presented to the judge was an affidavit
(classified „Secret“) from Thomas H. Karamessines, Deputy
Director of the Central Intelligence Agency, the head of the
CIA’s covert-activities branch. The affidavit said that a maga
zine article and an outline of a proposed book, both written
by Marchetti, had been turned over to the CIA and that
they contained information about the CIA’s secret activities.
The affidavit related several of the items and described how
their disclosure would, in the CIA’s opinion, be harmful to
the United States. On the basis of that affidavit and others,
including one by CIA Director Richard Helms, Judge Bryan
signed a temporary restraining order forbidding Marchetti to
disclose any information about the CIA and requiring him to
lnlroduclion by Melvin L. Wulf xxvii
submit any „manuscript, article or essay. or other writing,
factual or otherwise,“ to the CIA before „releasing it to any
person or corporation.“ It was that order which United
States marshals served upon Marchetti . The next month was
consumed by a hectic and unsuccessful effort to have the
order set aside.
Marchetti asked the ACLU for assistance the day after
receiving the order, and was in New York the following day
to meet his lawyers and prepare his defense . At the first
court appearance , on Friday, April 21. we unsuccessfully
urged Judge Bryan to dissolve the temporary restraining
order. He also refused to order the government to allow
Marchetti’s lawyers to read the „secret“ affidavit, because
none of us had security clearance. The following Monday we
were in Baltimore to arrange an appeal to the United States
Court of Appeals to argue there that the temporary restrain
ing order should be dissolved. The court agreed to hear
argument two days later. During the Baltimore meeting the
government lawyers announced that they had conferred secur
ity clearance upon me and that I would be able to read the
secret affidavit but could not have a copy of it. They said
they would clear the other defense lawyers during the next
few days. We were also told that any witnesses we intended
to present at trial, to be held that Friday. would also require
security clearance before we could discuss the secret affida
vit with them. That was a hell of a way to prepare for trial;
we couldn’t even talk to prospective witnesses unless they
were approved by the government.
We argued the appeal before the Court of Appeals on
Wednesday, but that too was unsuccessful, and the tempo
rary restraining order remained in effect. Our only satisfac
tion was an order by the court prohibiting both the CIA and
the Department of Justice from trying to influence our
witnesses in any way.
On Friday we appeared before Judge Bryan and reluc
tantly asked for a two-week postponement because it had
been impossible for us to secure witnesses who could testify
that day. The need for security clearance had made it impos
sible for us to discuss the case with those witnesses who had
at least tentatively agreed to testify for the defense. But,
more depressing, we had had great difficulty finding people
willing to testify at all. We had called a few dozen prospects,
largely former members of the Kennedy and Johnson admin-
xxviii The CIA and the Cult of lntelligeflce
istrations who had reputations as liberals and even , in some
cases. reputations as civil-libertarians. I’m still waiting for
half of them to return my calls. Of the other half, most were
simply frightened at the idea of being identified with the
case . and some. including a few who had themselves re
vealed classified information in their published memoirs,
agreed with the government that Marchetti’s pen should be
immobilized . In the end, our list of witnesses was short but
notable : Professor Abram Chayes of Harvard Law School,
and former Legal Advisor to the Department of State in the
Kennedy administration; Professor Richard Falk, Milbank
Professor of International Law at Princeton; Morton Halperin,
fonner Deputy Assistant Secretary of Defense and staff mem
ber of the National Security Council under Kissinger; and
Professor Paul Blackstock , an intelligence expert from the
University of South Carolina.
The next two weeks were consumed by the frustrating
hunt for witnesses and by other pre-trial requirements, in
cluding examination of Karamessines and the CIA’s Security
Director. who were to be the government’s chief witnesses.
The trial started and ended on May 15. Essentially, it
consisted of Karamessines repeating the contents of his se
cret affidavit . As interesting as it would be to describe the
day in detail. I am forbidden to. for the public was excluded
and the testimony of the government witnesses is classified.
The result, however. is public. It was a clean sweep for the
CIA, and Judge Bryan issued a permanent injunction against
Marchetti.
The results on appeal were not much better. The validity
of the injunction was broadly affirmed. The only limitation
imposed by the Court of Appeals was that only classified
information could be deleted from the book by the CIA.
The litigation finally came to an end in December 1972 when
the Supreme Court refused to hear the case. It was a great
defeat for Marchetti. for his lawyers-and for the First
Amendment.
American law has always recognized that injunctions against
publication-„prior restraints,“ in legal jargon–
threaten the
root and branch of democratic society. Until 1971 , when the
New York Times was enjoined from printing the Pentagon
Papers. the federal government had never attempted to im
pose a prior restraint on publication, and the handful of such
Introduction by Melvin L. Wulf xxix
efforts by the states were uniformly denounced by the Su
preme Court . As we learned from the Pentagon Papers
Case, however. the Nixon administration was not going to
be deterred by a mere two hundred years of history from
becoming the first administration to try to suppress publica
tion of a newspaper. They ultimately failed in their specific
goal of suppressing publication of a newspaper-but , for
fifteen days , a newspaper actually was restrained from
publishing, the first such restraint in American history.
The Times‘ resumption of publication of the Pentagon
Papers immediately after the Supreme Court decision would
seem to mean that the case ended victoriously. Although it
was a victory, it was not a sound victory . for only Justices
Black and Douglas said that injunctions against publication
were constitutionally forbidden under any circumstances. The
other mt:mbers of the court made it perfectly clear that they
could imagine circumstances where such injunctions would
be enforced, notwithstanding the First Amendment’s guaran
tee of a free press. Nixon-administration lawyers could read
the opinions as well as ACLU lawyers. and they too saw that
the decision in the Pentagon Papers Case was not a knock
out punch. So only ten months after being beaten off by the
New York Times. they were back in court trying the same
thing again with Victor Marchetti .
Nine opinions were written in the Pentagon Papers Case.
Out of all those opinions one standard emerge under which
a majority of the Justices would have allowed information to
be suppressed prior to publication : proof by the government
that disclosure would „surely result in direct , immediate and
irreparable injury to the Nation or its people. “ We were
comfortable with that standard because we were confident
that nothing Marchetti had disclosed or would disclose in the
future would have that effect. But we were not permitted to
put the government to its proof through the testimony of our
four witnesses because Judge Bryan agreed with the govern
ment that Marchetti’s case was different from the Pentagon
Papers Case. „We are not enjoining the press in this case ,“
the government lawyers said. „We are merely enforcing a
contract between Marchetti and the CIA. This is not a First
Amendment case, it’s just a contract action .“ The contract
to which they were referring was, of coutse, Marchetti’s
secrecy agreement.
All _employees of the CIA are required to sign an agree-
:ux The CIA and the Cult of Intelligence
ment in which they promise not to reveal any information
learned during their employment which relates to .. intelligence
sources or methods“ without first securing authorization from
the agency. The standard form of the agreement includes
threats of prosecution and promises to deliver the most
awful consequences upon the slightest violation. The only
trouble with the threats is that until now they have been
unenforceable. Apart from disclosure of information classi
fied by the Atomic Energy Commission, it is not a crime to
disclose classified information unles.s it is done under circum
stances which involve what is commonly understood as
espionage–spying for a foreign nation . The government
tried, in the prosecution of Daniel Ellsberg, to stretch the
espionage statutes to punish his disclosure of the Pentagon
Papers. even though he had had no intent to injure the
United States, as required by the statute. Though that prose
cution was aborted under the most dramatic circumstances,
including a surreptitious attempt by President Nixon to influ
ence the trial judge, it is unlikely that the appeals courts
would have upheld such an expansive application of the
espionage laws-assuming that the jury would even have
brought in a guilty verdict.
In any case , being doubtful about how far the threat of
prosecution under a dubious statute would deter Marchetti
from publicly criticizing the CIA and inevitably disclosing
some of its practices. the CIA fell upon the contract theory
as a device for trying to suppress his book before it was put
into print. The theory struck a harmonious note with· the
federal judges who heard the ca!;C. and proved more success
ful than the government probably ever dared to hope and
certainly more than we had ever expected. But it cheapens
the First Amendment to say that an agreement by an em
ployee of the United States not to reveal some government
activity is the same as an agreement to deliver a hundred
bales of cotton. It ignores the compelling democratic princi
ple that the public has a right to be well informed about its
government’s actions.
Of course , some will be heard to say, .. But these are
secrets,“ and indeed much of the information you will read
in this book has been considered to be secret. But .. secrets“
have been revealed before–there were literally thousands of
them in the Pentagon Papers. Every high government offi
cial who writes his memoirs after leaving office reveals
lntroducrion by Melvin L. Wu/f XXXI
„secrets“ he learned while in government service, and most
had signed secrecy agreements too. „Secrets“ are regularly
leaked to the press by government officers, sometimes to
serve official policy, sometimes only to serve a man’s own
ambitions. In fact, disclosure of so-called secretY-even CIA
secrets-has a long and honorable history in our country,
and the practice has proved to be valuable because it pro
vides the public with important information that it must have
in order to pass judgment on its elected officials.
Furthermore, disclosure of „secret“ information is rarely
harmful because the decision inside government to classify
information is notoriously frivolous. Experts have estimated
that up to 99 percent of the millions of documents currently
classified ought not be classified at all. But not only is
disclosure of „secret“ information generally harmless, it is a
tonic that improves our nation’s health. Government officers
cried that disclosure of the Pentagon Papers would put the
nation’s security in immediate jeopardy. When they were
finally published in their entirety. the only damage was to
the reputation of officials in the Kennedy and Johnson ad
ministrations who were shown to have deceived the nation
about the war in Vietnam.
When you read this book , you will notice that , unlike any
other book previously published in the United States, this
one contains blanks. That is the remarkable effect of the
government’s success. You will also notice that the book has
two authors, Victor Marchetti and John Marks. That is
another remarkable effect of the government’s success. Af
ter being enjoined, defeated in his attempts to win relief in
the appellate courts, virtually ignored by the press, shunned
by his former colleagues at the CIA, unable even to discuss
the progress of his work with his editor at Knopf (because
the very purpose of the injunction was to forbid the pub
lisher to see the manuscript before the CIA had had the
opportunity to censor it), there was serious question whether
Marchetti would be able to write the book at all. His discour
agement was profound and his bitterness sharp. If he had
not written the book, the government’s success would have
been complete, for that was its real objective. Luckily,
Marchetti and Marks came together, and with a shared
perspective on the evils of clandestine activities, they were
xxxii The CIA and the Cult of Intelligence
able to do together what the government hoped would not
be done at all.
When the manuscript was completed at the end of August
1973 , it was delivered 10 the CIA. Thirty days later, the time
allowed by the injunction. we received a letter from the CIA
which designated 339 portions of the book that were to be
deleted. Some of the deletions were single words, some were
several lines, some were portions of organizational charts,
and many were whole pages. In all , 15 to 20 percent of the
manuscript was ordered deleted. I won’t soon forget that
September evening when Marchetti, Marks, and I sat in the
ACLU office for several hours literally cutting out the de
leted parts of the manuscript so that we could deliver the
remains to Knopf. It was the Devil’s work we did that day.
We filed suit in October, together with Knopf, challenging
the CIA’s censorship. By the time we went to trial on
February 28. the agency had reduced the number of dele
tion� from 339 to 168. Withdrawal of half their original objec
tions should not be taken as a sign of the CIA’s generosity.
On the contrary, it was the result of our insistent demands
over a period of four months, and the agency’s recognition
that we would go to the mat over the very last censored
word. The authors gave up nothing. and rejected several
invitations to re-write parts of the book so that it would be
satisfactory to the CIA.
There were three issues to be decided at the trial: did the
censoreti portions of the bookconsist of classified information?
Was that information learned by the authors during their
government employment? And was any of it in the public
domain?
After a two-and-a-half-day trial, including testimony by
the five highest-ranking officials of the CIA, Judge Bryan
decided the case on March 29. It was a major victory for the
authors and the publisher. Bryan held that the agency had
failed, with a few exceptions, to prove that the deleted
information was classified.
The decision was probably more surprising to the CIA .
Accustomed as they have become to having their way, it is
unlikely to have occurred to them that a mere judge of the
United States would contradict their declarations about clas
sified information, for it wa� the government’s theory through
out the case that material was classified if high-ranking officials
said it was classified. Our view, presented through the ex-
Introduction by Meldn L. Wulf xxxm
pert testimony of Morton Halperin, was that concrete proof
of classification was required. In the absence of documents
declaring specific information to be classified, or testimony
by the employee who had in fact clas.-;ified specific information,
Judge Bryan flatly rejected mere assertions by ranking CIA
officers that such information was classified.
Of the 168 disputed items, he found only 27 which he could
say were classified. On the other hand, he found that only
seven of the 168 had been learned by Marchetti and Marks
outside their government employment, and that none of the
information was in public domain.
The decision is obviously important . It allows virtually the
entire book to be published (though the present edition still
lacks the deleted sections cleared by Judge Bryan , since he
postponed enforcement of his decision to allow the goverment
its right to appeal); it desanctifies the CIA ; and it discards
the magical authority that has always accompanied govern
ment incantation of „national security. “ Hopefully, the higher
courts will agree.
There will necessarily be differences of opinion on the sub
ject of the disclosure of secret information. The reader of
this book can decide whether the release of the information
it contains serves the public’s interest or injures the nation’s
security. For myself, I have no doubts. Both individual citi
zens and the nation as a whole will be far better off for the
book’s having been published. The only injury inflicted in
the course of the struggle to publish the book is the damage
sustained by the First Amendment.
Impressum