[Congressional Record Volume 140, Number 92 (Friday, July 15, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: July 15, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
STATEMENT ON THE NOMINATION OF DR. MORTON HALPERIN
Mr. THURMOND. Madam President, over 200 years ago, the founders of
this great Nation of ours made a very wise decision. They decided that
certain appointments to high political office would be made by the
President but the power to do so was subject to the approval of the
Senate. Our Founding Fathers placed in article II section 2 of the
Constitution the 10 words, ``* * * by and with the Advice and Consent
of the Senate * * *.'' Those words make it the responsibility of the
Senate to examine the fitness of Presidential appointments to certain
positions within the Federal Government. Mr. President, we on the Armed
Services Committee take that responsibility very seriously.
President Clinton has made some interesting Department of Defense
appointments since taking office. I have not objected to any of his
choices, except one. I did not always agree with them, but I voted for
them because I believe a President should have the people he wants
serving in his administration unless they are incompetent or dangerous.
Mr. President, Morton Halperin is dangerous. I want to make it clear
that I am not here to restate a hearing that did not go well for Dr.
Halperin. That record has been made and can be read by anyone who so
desires. What I want to state today is that the Senate Armed Services
Committee is extremely serious about its constitutional
responsibilities. We are required to fully examine the background of
all nominees that come before the committee for confirmation hearings.
The Department of Defense and the White House hired Dr. Halperin as a
consultant in January 1993 but did not send his name to the Senate for
our advice and consent until August, 8 months later. He admitted to
being quite active during this period and also admitted that knowingly
and in violation of DOD rules and regulations he performed a number of
functions that presumed our advice and consent. In so doing, Dr.
Halperin appeared to take our constitutional responsibilities a lot
less seriously than we did.
Madam President, this was not an unknown person. Dr. Halperin has
published more than a dozen books and more than 100 articles over the
years. He has made some of the most outrageous statements I have ever
read. Both in writing and at his hearing, he attempted to explain them
away or deny that they meant precisely what a clear reading of them
indicates. Some excerpts from Dr. Halperin's November, 1993,
confirmation testimony before the Senate Armed Services Committee were
recently introduced into the Congressional Record. One statement was:
I have been accused of believing that the United States
should subordinate its interests to the United Nations, never
using force without its consent and putting American forces
at its disposal. That is false.
Madam President, Dr. Halperin may say in November 1993 this was false
but earlier that same year, Dr. Halperin wrote in a publication
entitled ``Foreign Policy'':
The United States should explicitly surrender the right to
intervene unilaterally in the internal affairs of other
countries by overt military means or by covert operations.
Such self restraint would bar interventions like those in
Grenada and Panama, unless the United States first gained the
explicit consent of the international community acting
through the Security Council or a regional organization.
Madam President, if Members of this body will review those remarks, I
think they will see a serious conflict, at least one that is worth
discussing with a person who is being considered for an Assistant
Secretary of Defense.
As I stated earlier, the Senate has the responsibility to advise and
consent. We would be negligent in our duties if we did not attempt to
figure out what Dr. Halperin really believed. As you can see, he says
different things at different times. This is but one example and I
would like to introduce for the record a number of quotes from Dr.
Halperin that give me concern as to his fitness to serve in the
Department of Defense or anywhere in the Federal Government. I have
given a citation for each of these quotes so that Members can read them
for themselves to determine if they are taken out of context. Let me
read just two more to give the Senate a feel for the task the Senate
Armed Services Committee faced in holding hearings to decide whether
Dr. Halperin should be recommended to the Senate.
In the past, Dr. Halperin has tried to assure us that the Soviet
Union was of no danger to us. In his ``Defense Strategies for the
Seventies,'' Dr. Halperin wrote:
The Soviet Union apparently never even contemplated the
overt use of military force against Western Europe. * * * The
Soviet posture toward Western Europe has been, and continues
to be, a defense and deterrent one.
Revelations since the fall of the Warsaw Pact have shown how much in
error this statement was. His opinion of intelligence operations was
expressed in a book entitled ``The Lawless State,'' as follows:
Using secret intelligence agencies to defend a
constitutional republic is akin to the ancient medical
practice of employing leeches to take blood from feverish
patients. The intent is therapeutic, but in the long run the
cure is more deadly than the disease.
Why he made this statement or how much he believed this to be true is
of concern to the Armed Services Committee and to all Senators, I
should think. Mr. President, I would also like to insert in the Record
after my remarks a document that was prepared by Mr. Francis J.
McNamara and given to the committee concerning Dr. Halperin. It
chronicles for the committee Dr. Halperin's involvement with the
Pentagon Papers, a renegade CIA agent named Phillip Agee and his early
association with a convicted Vietnamese spy named David Truong. To have
ignored information such as this would have been totally irresponsible.
Dr. Halperin may have had an unpleasant experience before the Armed
Services Committee and may have requested his name be withdrawn for
that or any number of other reasons. What I don't want the Senate to
think is that, because the hearings were terminated, all the areas that
he was questioned on, both in writing and at the hearing, are therefore
not true. Dr. Halperin--no one else--made the statements he was
questioned about. He addressed them by attempting to explain that he
either no longer held those views or that they were taken out of
context or that he may not have written them as artfully as he could
have. Most explanations were totally unacceptable to this Senator and
others I have been told.
Many members of the committee had significant problems with Dr.
Halperin. I still do, and I believe from what I have read and heard,
that he should not be allowed to deal in military matters, security
matters or international relations. The President has placed him in
another sensitive position at the national Security Council, and I
believe the country will pay a price for that. This time, he chose to
place him where the Senate could not give its advice and consent. I can
fully understand why the President would choose to do this, if he did
not want Dr. Halperin to be rejected by the Senate.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Selected Publication Titles by Morton Halperin Concerning the U.S.
Intelligence Community
``Led Astray by the CIA,'' The New Republic, June 28, 1975.
``The Most Secret Agents,'' The New Republic, July 26,
1975.
``CIA: Denying What's Not in Writing,'' The New Republic,
October 4, 1975.
``The Cult of Incompetence,'' The New Republic, November 8,
1975.
``The Lawless State: The Crimes of the U.S. Intelligence
Agencies,'' with Jerry J. Berman, Robert L. Borosage and
Christine M. Marwick, Center for National Security Studies,
Washington, 1976.
``Secrecy and the Right to Know,'' with Daniel N. Hoffman,
Law and Contemporary Problems, Summer 1976.
``Freedom Versus National Security,'' with Daniel N.
Hoffman, Chelsea House Publishers, New York, 1977.
``Top Secret: National Security and the Right to Know,''
with Daniel N. Hoffman, New Republic Books, Washington 1977.
``Oversight is Irrelevant if CIA Director Can Waive the
Rules,'' The Center [for National Security Studies] Magazine,
March/April 1979.
``The CIA's Distemper,'' The New Republic, February 9,
1980.
``Secrecy and National Security,'' Bulletin of the Atomic
Scientists, August 1985.
``The Case Against Covert Action,'' The Nation, March 2,
1987.
selected quotations attributed to morton halperin
The achievement in which I take the greatest pride is the
largely behind-the-scenes efforts of the ACLU to defend the
First Amendment by defeating the flag-burning constitutional
amendment in both houses of Congress.--Washington Post, 8
September 1992.
The constitutional rights of Americans have also been major
casualties in the ``war on drugs * * * Gross invasions of
privacy such as urine testing, excessive property forfeitures
and seizures without due process of law, the circulation of
extensive government files on suspected drug offenders, and
border patrols and checkpoints that inhibit free travel, all
are among the draconian actions deemed necessary to wage the
war on drugs.--``Ending The Cold War at Home,'' Foreign
Policy, Winter 1990-91 (with Jeanne Wood).
(Morton Halperin's criticism of scientists who refuse to
help lawyers representing The Progressive and its editors
oppose government efforts to halt the magazine's publication
of detailed information about the design and manufacturing of
nuclear weapons:)
They failed to understand that the question of whether
publishing the ``secret of the H-bomb'' would help or hinder
non-proliferation efforts was beside the point. The real
question was whether the government had the right to decide
what information should be published. If the government could
stop publication of [this] article, it could, in theory,
prevent publication of any other material that it thought
would stimulate proliferation.--``Secrecy and National
Security,'' The Bulletin of the Atomic Scientists, August
1985, p. 116.
It is clearly a violation of the rights of free speech and
association to bar American citizens from acting as agents
seeking to advance the political ideology of any
organization, even if that organization is based abroad.
Notwithstanding criminal acts in which the PLO may have been
involved, a ban on advocacy of all components of the PLO's
efforts will not withstand constitutional scrutiny.--The
Nation, October 10, 1987.
Having had administrative responsibility for the production
of the [Pentagon] Papers, I knew they contained nothing which
would cause serious injury to national security. I watched
with amazement as the Justice Department, without knowing
what was in the study, sought to persuade court after court
that they should be suppressed.--``Where I'm At,'' First
Principles, September 1975, p. 16.
International terrorism is rapidly supplanting the
communist threat as the primary justification for wholesale
deprivations of civil liberties and distortions of the
democratic process.--``Ending The Cold War At Home,'' Foreign
Policy, Winter 1990-91 (with Jeanne Wood).
Standard Form 86 (questionnaire for applicants to sensitive
or critical government positions) asks intrusive and
irrelevant questions regarding Communist party membership,
prior arrests (whether or not they resulted in a conviction),
drug and alcohol abuse, and private medical information,
including mental health history.--``Ending The Cold War At
Home,'' Foreign Policy, Winter 1990-91 (with Jeanne Wood).
(Morton Halperin on classification of materials:)
The first category [of documents that should be
automatically released] includes information necessary to
congressional exercise of its constitutional powers to
declare war, to raise armies, to regulate the armed forces,
to ratify treaties, and to approve official appointments.--
Top Secret: National Security and the Right to Know, 1977.
(Morton Halperin on the Freedom of Information Act:)
Release under the FOIA have provided valuable background
information on already exposed CIA covert action * * * The
FOIA has not been a primary tool in uncovering previously
undisclosed CIA covert action. Explicit exemptions under the
Act for Information that could harm ``national security''
have prevented such revelations.--``The CIA and Covert
Action,'' published by the Campaign for Political Rights of
which Halperin was a Steering Committee member, June 1982.
(Morton Halperin on the Freedom of Information Act:)
More recently, through the Project on National Security and
Civil Liberties, I have been involved in an effort to use the
Freedom of Information Act to pry ``secrets'' from the
national security bureaucracy.--``Where I'm At,'' commentary
by Morton Halperin, First Principles, September 1975.
* * * I suggest * * * that the United States be prohibited
from being the first to use nuclear weapons. In my judgement,
there are no circumstances that would justify the United
States using nuclear weapons, unless those weapons were used
first by an opposing power.--``American Military
Intervention: Is It Ever Justified?'' p. 670, June 9, 1979,
The Nation.
* * * Every action which the Soviet Union and Cuba have
taken in Africa has been consistent with the principles of
international law. The Cubans have come in only when invited
by a government and have remained only at their request. * *
* The American public needs to understand that Soviet conduct
in Africa violates no Soviet-American agreements nor any
accepted principles of international behavior. It reflects
simply a different Soviet estimate of what should happen in
the African continent and a genuine conflict between the
United States and the Soviet Union.--``American Military
Intervention: Is It Ever Justified?'', The Nation, June 9,
1979, p. 668.
One of the great disappointments of the Carter
Administration is that it has failed to give any systematic
reconsideration to the security commitments of the United
States. [For example, President Carter's] decision to
withdraw [U.S. ground forces from Korea] was accompanied by a
commitment to keep air and naval units in and around Korea--a
strong reaffirmation by the United States of its security
commitment to Korea. This action prevented a careful
consideration of whether the United States wished to remain
committed to the security of Korea * * *. Even if a
commitment is maintained, a request for American military
intervention should not be routinely honored.--The Nation,
June 9, 1979, p. 670.
The United States should explicitly surrender the right to
intervene unilaterally in the internal affairs of other
countries by overt military means or by covert operations.
Such self restraint would bar interventions like those in
Grenada and Panama, unless the United States first gained the
explicit consent of the international community acting
through the Security Council or a regional organization. The
United States would, however, retain the right granted under
Article 51 of the U.N. Charter to act unilaterally if
necessary to meet threats to international peace and security
involving aggression across borders (such as those in Kuwait
and in Bosnia-Herzegovina.)--Guaranteeing Democracy, Summer
1993 Foreign Policy, p. 120.
The only way to stop this pattern [of abuse] is to impose
an absolute requirement of public approval to bar
paramilitary operations that are covert.--``Lawful Wars,''
Foreign Policy, Fall 1988.
(Morton Halperin's position on legislation to set heavy
criminal penalties for Americans who deliberately identify
undercover U.S. intelligence agents:)
[Such legislation] will chill public debate on important
intelligence issues and is unconstitutional * * *. What we
have is a bill which is merely symbolic in its protection of
agents but which does violence to the principles of the First
Amendment.--UPI, April 8, 1981.
(1971, Defense strategies for the seventies:)
The Soviet Union apparently never even contemplated the
overt use of military force against Western Europe. The
Soviet posture toward Western Europe has been, and continues
to be, a defensive and deterrent one.
(Concerning the espionage trial of Truong and Humphries:)
Morton Halperin, told the news conference that the American
Civil-Liberties Union will file a friend-of-the-Court brief
challenging the conviction of the two men.
He (Halperin) said it will challenge the theory that theft
of any informaiton developed by the government is a crime,
that espionage can be alleged without proving intent to
injure the United States, and that the President has inherent
approval to authorize searches and electronic surveillance
without a court warrant.--1978, Associated Press.
(Concerning the espionage trail of Truong an Humphries)
In my judgement there is nothing in those documents
relating to national defense * * * There is nothing in those
documents which might reasonably be expected to have
threatened United States foreign policy or benefitted another
nation.
Halperin said that, ``I have closely examined seven cables
cited in the indictment and concluded that they had been
improperly classified as confidential or secret, and in one
case Top Secret.''--1978, Associated Press.
In the name of protecting liberty from communism, a massive
undemocratic national security structure was erected during
the Cold War, which continues to exist even though the Cold
War is over. Now, with the Gulf War having commenced, we are
seeing further unjustified limitations of constitutional
rights using the powers granted to the executive branch
during the Cold War.--United Press International, January 28,
1991.
Using secret intelligence agencies to defend a
constitutional republic is akin to the ancient medical
practice of employing leeches to take blood from feverish
patients. The intent is therapeutic, but in the long run the
cure is more deadly than the disease. Secret intelligence
agencies are designed to act routinely in ways that violate
the laws or standards of society.--The Lawless State: The
Crimes of the U.S. Intelligence Agencies, 1976, p. 5.
You can never preclude abuses by intelligence agencies and,
therefore, that is a risk that you run if you decide to have
intelligence agencies. I think there is a very real tension
between a clandestine intelligence agency and a free society.
I think we accepted it for the first time during the Cold War
period and I think in light of the end of the Cold War we
need to assess a variety of things at home, including secret
intelligence agencies, and make sure that we end the Cold War
at home as we end it abroad.--MacNeil/Lehrer Newshour, July
23, 1991.
[T]he primary function of the [intelligence] agencies is to
undertake disreputable activities that presidents do not wish
to reveal to the public or expose to congressional debate.--
The Lawless State, 1976, p. 221.
* * * The intelligence [service's] * * * monastic training
prepared officials not for saintliness, but for crime, for
acts transgressing the limits of accepted law and morality *
* * The abuses of the intelligence agencies are one of the
symptoms of the amassing of power in the postwar presidency;
the only way to safeguard against future crimes is to alter
that balance of power.
Clandestine government means that Americans give up
something for nothing--they give up their right to
participation in the political process and to informed
consent in exchange for grave assaults on basic rights and a
long record of serious policy failures abroad.--The Lawless
State: The Crimes of the U.S. Intelligence Agencies, 1976 pp.
222-57.
Spies and covert action are counterproductive as tools in
international relations. The costs are too high; the returns
too meager. Covert action and spies should be banned and the
CIA's Clandestine Services Branch disbanded.--The Lawless
State, 1976, p. 263.
Secrecy * * * does not serve national security * * * Covert
operations are incompatible with constitutional government
and should be abolished.--``Just Say No: The Case Against
Covert Action,'' The Nation, March 21, 1987, p. 363.
* * * Covert intervention, whether through the CIA or any
other agency, should be absolutely prohibited * * *.--
``American Military Intervention: Is It Ever Justified?'' The
Nation, 9 June 1979, p. 670.
The budgets of most intelligence agencies remain secret.
Such secrecy is not part of any legitimate national security
purpose * * * The CIA should be limited to collating and
evaluating intelligence information, and its only activities
in the United States should be openly acknowledged actions in
support of this mission. The agency's clandestine service
should be abolished.--``Controlling the Intelligence
Agencies,'' First Principles, October 1975, p. 16.
It may be true that other nations have, and will continue
to engage in covert action. But this is far from proper
justification for its use by the U.S. Indeed, few nations in
the world have used covert action as aggressively and
comprehensively as the U.S. And in no other country does the
use of covert action conflict so violently with the guiding
principles of a nation's constitution and the desires of its
people * * * Covert action violates international law.--``The
CIA and Covert Action,'' June 1982 report produced by the
Campaign for Political Rights.
The ACLU believes, and I believe that the United States
should not conduct covert operations * * * The record now
before this committee and the nation demonstrate that covert
operations are fundamentally incompatible with a democratic
society.--Testimony provided by Halperin before the House
Select Committee on Intelligence regarding Prior Notice of
Covert Actions to the Congress, April 1 and 8, 1987 and June
10, 1987, pp. 90 and 96 of the hearing record.
The FBI should be limited to the investigation of crime; it
should be prohibited from conducting `intelligence'
investigations on groups or individuals or individuals not
suspected of crimes.--``Controlling the Intelligence
Agencies,'' First Principles, October 1975.
The only way to stop all of this is to dissolve the CIA
covert career service and to bar the CIA from at least
developing and allied nations.--Morton Halperin's review of
Philip Agee's book Inside the Company; CIA Diary wherein no
mention is made of the fact that the book contained some
thirty pages of names of U.S. covert operatives overseas.
Review found in First Principles, September 1975, p. 13.
In the wake of Vietnam and Watergate, the question must be
faced: Should the U.S. government continue to engage in
clandestine operations? We at the Center for National
Security Studies believe that the answer is `No'; that the
CIA's covert action programs should be ended immediately. The
risks and costs of maintaining a clandestine underworld are
too great, and covert action cannot be justified on either
pragmatic or moral grounds.--``CIA Covert Action: Threat to
the Constitution,'' Pamphlet published by the Center for
National Security Studies, 1976. Morton Halperin is listed as
a ``participant'' and at the time was Chief Editorial Writer
for the CNSS' publication, First Principles.
Defenders of the CIA argue that the Agency's covert actions
protect the `national security.' Yet historically, covert
action has had little, if anything, to do with the reasonable
defense of the country * * * Morton Halperin * * * has stated
that he knows of no program of covert action which was
necessary to the national security.--``CIA Covert Action:
Threat to the Constitution,'' Pamphlet published by the
Center for National Security Studies, 1976. Morton Halperin
is listed as a ``participant'' and at the time was Chief
Editorial Writer for the CNSS' publication, First Principles.
A bureaucracy trained in the nefarious tactics of espionage
and of covert action is a constant threat in an open
society.--``CIA Covert Action: Threat to the Constitution,''
Pamphlet published by the Center for National Security
Studies, 1976. Morton Halperin is listed as a ``participant''
and at the time was Chief Editorial Writer for the CNSS'
publication, First Principles.
A bureaucracy skilled in deceit is suspect in any
government, but it is particularly destructive to a
republic.--``CIA Covert Action: Threat to the Constitution,''
Pamphlet published by the Center for National Security
Studies, 1976. Morton Halperin is listed as a ``participant''
and at the time was Chief Editorial Writer for the CNSS'
publication, First Principles.
Covert operations involved breaking the laws of other
nations, and those who conduct them come to believe that they
can also break U.S. law and get away with it * * * Covert
operations breed a disrespect for the truth.--``Just Say No:
The Case Against Covert Action'' The Nation, March 21, 1987.
* * * even if covert action is not `misused,' it still
corrodes our constitutional order.--``CIA Covert Action:
Threat to the Constitution,'' Pamphlet published by the
Center for National Security Studies, 1976. Morton Halperin
is listed as a ``participant'' and at the time was Chief
Editorial Writer for the CNSS' publication, First Principles.
(Morton Halperin on Philip Agee's exposure of CIA agents
using State Department documents)
It is difficult to condemn people who do that.--Testimony
before the House Intelligence Committee by Morton Halperin,
January 4, 1978.
____
Morton H. Halperin and National Security Issues--A Partial Record
halperin and philip agee
No country can be secure without good intelligence. Good
intelligence cannot be obtained unless the confidentiality of
a nation's operatives is maintained.
No single individual has done as much harm to the CIA--and
thus in certain respects to the security of the U.S. and all
its people--as has Philip Agee, the renegade CIA officer who
resigned from the Agency at its request in 1968 and has since
devoted himself to exposing its covert personnel and friends
wherever and whoever they are.
Agee has not achieved his success in this area alone. He
could not have inflicted the damage he has on this Country
without the help of his colleagues at CounterSpy and the
Covert Action Information Bulletin (CAIB), his two major
exposure instruments, and others who in various ways have
aided, abetted, publicized, defended and supported them and
him.
Agee's first book, ``Inside The Company: CIA Diary''
published in 1975, included an appendix that listed the names
of over 425 individuals and organizations (unions,
publications, corporations, banks, institutes, etc.) he
claimed were secretly employees, agents, or fronts for the
CIA. The book eventually was translated into ``at least 16
foreign languages,'' according to press accounts.
His next book, ``Dirty Work: The CIA in Western Europe,''
released in 1978, contained a list of over 700 alleged CIA
officers, agents, assets, informants, contacts and sources.
Following this in 1980, came ``Dirty Work II: The CIA in
Africa,'' with its 238 page list of those supposedly
performing the same functions in that part of the world and,
in 1982, ``White Paper? Whitewash!,'' Agee's attack on the
State Department's ``White Paper'' on El Salvador.
These books were supplemented by ongoing lists of
``agents'' published in CounterSpy and Covert Action
Information Bulletin and by Agee's and his supporters' press
conferences, speeches and articles. By the end of 1981,
Agee's CAIBers were boasting that they had exposed over 2000
U.S. covert intelligence personnel.
The vital intelligence loss to this country was
incalculable. Their usefulness destroyed, CIA personnel had
to be taken out of clandestine activities in the locales in
which they were serving, or transferred (usually with their
families) to new locations where they faced likely foreign
language problems, lack of contacts, new cultures to adjust
to and other problems limiting their effectiveness. The same
applied, of course, to those dispatched to replace them when
personnel with appropriate skills were available. The dollar
cost of these shifts ran to millions.
The CIA station chief in Athens, Richard Welch, was
murdered by terrorists after two or three listings in
CounterSpy and then being identified in a local paper (which
checked with the magazine to confirm his identity). After
Agee visited Managua in 1981 and a pro-Sandinista newspaper
published a list of alleged CIA personnel in the U.S. Embassy
there, some received death threats. A number, fearful for the
lives of their wives and children, sent them out of the
country.
These continuing exposures had extensive adverse effect on
CIA morale. Officers everywhere--and all their contacts,
too--lived in constant fear of being named next. The effect
on foreign sources, assets and agents, some of them
cooperative friends of the U.S. for decades, was particularly
devastating. They did not have the luxury of being able to
relocate themselves and their families to safer places. With
their parents, wives and children they had to stay in place,
in danger, no matter how sensitive and perilous their
positions. Sources began to dry up everywhere.
CIA General Counsel Daniel Silver told the 1980 American
Bar Association convention in Chicago the exposures were ``a
devastating problem'' for the Agency. Deputy CIA Director
Frank Carlucci told the '80 convention of the Association of
Former Intelligence Officers (AFIO) ``There is no subject on
which people in the Agency feel more strongly, nor on which I
feel more strongly. We must do something to solve this
problem.'' He had asked Congress, he said, ``What more do you
need to act, another dead body?''
Following is at least part of the public record of Morton
Halperin's actions relative to CounterSpy, the Covert Action
Information Bulletin and Philip Agee:
CounterSpy's publisher, the Organizing Committee for a
Fifth Estate (OC 5), according to its 1975 annual report,
``had been instrumental in organizing several other
organizations'' that year, one of which was ``The Public
Education Project on the Intelligence Community (PEPIC) * * *
a year long effort.
Morton Halperin, the report continued, was a member of
PEPIC's speakers bureau, all of whose members ``will be
donating their time, energy and fees to PEPIC to ensure its
survival.''
The Senate Internal Security subcommittee, in its 1977
annual report, identified PEPIC as one of the ``several
fronts'' set up by Agee's OC-5 to accomplish its objective of
finding ``those individuals with research or organizing
abilities to join the Counter-Spy Team.''
Halperin was Director of the Project on National Security
and Civil Liberties, jointly funded by the ACLU Foundation
and the Center for National Security Studies (CNSS) of the
Fund for Peace, which Halperin also directed. The Project
began publishing ``First Principles'', usually on a monthly
basis, in September, 1975 with Halperin its chief editorial
(``Point of View'') writer.
CounterSpy describes itself as ``The Quarterly Journal of
the Organizing Committee for a Fifth Estate''. In addition to
publishing OC-5's 1975 annual report in its Winter '76 issue,
it included what it termed its ``Resource List'' of groups
working in ``the areas of national security and civil
liberties'', with the literature available from each. It
listed: Project on National Security and Civil Liberties
[Address and telephone number]; First Principles (newsletter
published monthly except July and August); Led Astray by the
CIA by Morton Halperin; The Abuses of the Intelligence
Agencies, ed. by Jerry Berman and Morton H. Halperin; and
Center for National Security Studies [address and telephone
number same as above Project] [six items listed]; The Abuses
of the Intelligence Agencies by Jerry Berman and Morton
Halperin.
CounterSpy's editors seemed to like the Berman-Halperin
``Abuses work. Of the many items listed as available from its
resource list of 10 organizations, it was the only one
mentioned twice. Interestingly, however, they did not note
that Halperin was director of both the ``Project'' and the
``Center'' on their resource list.
One other item in the Winter '76 CounterSpy is worth
noting. The contents page, beneath the names of its editorial
board members and coordinators, printed this boxed item:
CounterSpy sends special thanks to: Morton Halperin [21
others were also named, with nine other names, like
Halperin's being in bold type].
Agee's CounterSpy did not say what its ``special thanks''
to Halperin were for. Perhaps he made many well-paid speeches
and gave all his fees, as pledged, to PEPIC, OC-5's front;
perhaps it was for his favorable review of Agee's ``Inside
The Company'' in ``First Principles'' (see following
paragraphs); it could have been for any number of things he
might have done for CounterSpy.
Halperin favorably reviewed Agee's ``Inside The Company:
CIA Diary'' in the very first issue of ``First Principles.''
Moreover, he managed to do so without even metioning the fact
that in his introduction Agee thanked the Cuban Communist
Party and Cuban government agencies for the ``important
encouragement'' and ``special assistance'' they had given him
in writing the book. Halperin also failed to mention the fact
that the book contained the names and identities of over 425
people in all parts of the world Agee claimed were officers,
agents and cooperators with the CIA.
Giving full credence to Agee's allegations of horrendous
CIA wrongdoing, Halperin wrote: ``The only way to stop all of
this is to dissolve the CIA covert career service * * *.
Halperin next wrote an article, ``CIA News Management,''
published in the Washington Post (1/23/77) in which he
absolved Agee and CounterSpy of all blame for the
assassination of Richard Welch, the CIA Athens station chief,
placing responsibility for the killing on Welch himself and
the CIA.
The following month, Halperin traveled to England to help
Agee who was fighting deportation from that country for
``regular contacts * * * with foreign intelligence
agents,'' disseminating information ``harmful to the security
of the United Kingdom,'' and aiding and counseling others in
``obtaining information'' which, if published, ``could be
harmful'' to the United Kingdom's security.
Agee was deported from England despite Halperin's efforts
in his behalf.
Halperin testified before the House Intelligence Committee
on January 4, 1978, rehashing his Washington Post accusations
against Welch himself and the CIA for Welch's death and again
cleansing Agee and CounterSpy of all blame.
Referring to the exposure of covert CIA personnel by Agee
and others on the basis of information gleaned from State
Department documents, Halperin asserted: ``it is difficult to
condemn people who do that.''
(Others have different views. In a 1980 Senate hearing on
an agent identities protection bill, former Senator Jake Garn
said Agee's actions ``border on treason'' and Senator John
Chafee stated it was his opinion that ``this willful
disclosure of the names of persons who are unlawfully engaged
in intelligence work for this Nation falls in the same
category * * * as an act of treason.'')
The January 1978 issue of Halperin's ``First Principles''
featured a page-one article by him, ``The CIA and
Manipulation of the American Press,'' in which he once more
played his tired refrain about Agee and CounterSpy being
blameless--and Welch and the CIA being the opposite--for the
station chief's death (he threw in some other items as well
to bolster his ongoing, basic theme of undemocratic CIA
operations).
With Halperin's permission, his ``CIA News Management''
column was republished in Agee's 1978 book, ``Dirty Work: The
CIA in Western Europe.'' Publisher Lyle Stuart proclaimed in
a newspaper ad for the book that it contained ``a list of
more than 700 CIA agents currently working in Western Europe.
It completely blows their cover.'' He then added: ``But
`Dirty Work' is more than that. A comprehensive picture of
the CIA emerges in `Dirty Work.' [two other contributors] * *
* and Morton Halperin have all shown considerable courage in
informing America about the seamy side of American espionage
* * *''
There is no indication that Halperin was displeased by this
pat on the back from Agee's publisher.
Halperin was chairperson of the Campaign to Stop Government
Spying (CSGS) which emerged from a Conference on Government
Spying he had addressed in Chicago in January 1977. Arranged
by the cited Communist front, the National Lawyers Guild
(NLG), the conference's co-conveners included the ACLU, with
Halperin director of its Washington office; the Center for
National Security Studies (CNSS), which Halperin directed;
the National Emergency Civil Liberties Committee, another
cited front for the Communist Party; the National Conference
of Black Lawyers, affiliated with the Soviet Union's then
international attorneys' front, the International Association
of Democratic Lawyers, and the Political Rights Defense Fund,
a front of the Trotskyist Communist organization, the
Socialist Workers Party (SWP). The conference's steering
committee included the SWP, ACLU, CNSS, NLG, Institute for
Policy Studies, and Agee's OC-5.
Halperin's CSGS was an ``anti-U.S. intelligence''
conglomerate composed of about 80 organizations. Listed on
its letterhead as a member of its steering committee was
Agee's CounterSpy.
Halperin's CSGS changed its name the following year to the
more politically acceptable Campaign for Political Rights
(CPR), with Halperin still its chairperson. Its new
letterhead listed not only CounterSpy as a member of the CPR
steering committee, but also its successor, Agee's Covert
Action Information Bulletin (CAIB). Both publications were
heavily into the ``naming CIA names'' game.\1\
---------------------------------------------------------------------------
\1\The original CounterSpy with which Agee was affiliated
began publication with its March 1973 issue; it ceased
publishing after its November 1976 issue--until publication
was resumed under new management in December 1978.
Agee was not affiliated with the new CounterSpy, he and two
others formerly associated with it having announced
publication of its successor, the Covert Action Information
Bulletin (CAIB), while attending the Soviet-controlled
eleventh World Festival of Youth and Students in Havana on
July 28, 1978, the opening day of the festival. Free copies
of the first issue of CAIB, dated July 1978, were distributed
to those at the festival. Agee and his associates said the
CAIB was intended to be: ``a permanent weapon in the fight
against the CIA, the FBI, military intelligence and all the
other instruments of U.S. imperialist oppression.''
---------------------------------------------------------------------------
As chairperson of both the CSGS and CPR, Halperin must have
had some say about just which groups would be invited to
join, and which would be selected for leadership positions
in, his organization.
There is no record that he ever opposed, or indicated
unhappiness about either U.S.-security-destroying publication
being in the organization's leadership.
In late 1978, Halperin's CPR published a ``Materials List''
to assist its members in their agit-prop work against
American intelligence agencies. Agee's ``Inside the Company''
was included in it under the category ``Memoirs by Former
Employees'' and his Covert Action Information Bulletin under
``Sources of Information.''
``Organizing Notes'' (``O.N.''), according to its masthead,
was ``published by the Campaign for Political Rights.''
Released eight times a year, it was designed--like ``First
Principles,'' which it closely resembled--to keep its readers
abreast of current developments related to the CPR's basic
mission. Like ``First Principles,'' it had an ``Update''
feature which it said was ``a combined effort of `First
Principles' and `Organizing Notes'.'' (``First Principles''
had regularly featured an ``Update'' section).
Halperin's name did not appear on the masthead of
``Organizing Notes,'' but, as chairperson of the CPR he had
to be responsible for its contents, just as he was for the
contents of the CPR's ``Materials List.''
``Organizing Notes'' routinely promoted both Agee's CAIB
and CounterSpy as containing worthwhile information of value
to its readers.
CAIB received promotional boosts in the following issues of
``ON'': 1-2/79 p. 3; 4-5/79 pp. 8 & 19; 7-8/80 pp. 12 & 14;
7-8/81 p. 14.
CounterSpy received the same treatment in these issues: 1-
2/79 pp. 5 & 13; 4-5/79 p. 6: 8-9/80.
This tabulation is based on a check of scattered issues of
``ON.'' A thorough check of all issues would undoubtedly
reveal a considerably greater number of positive mentions. It
is interesting, too, to note what Halperin's ``ON''
considered interesting in various issues:
CounterSpy 12/78: ``lists numerous CIA agents now
overseas.''
CAIB 1/79: ``reprints a top secret U.S. army memo on
infiltrating and subverting allies--although the Army
continues to deny it was an official document.''
[Fact: the Army did more than deny it was ``an official
document.'' The alleged ``army memo'' [``F. M. 30-31B''] was
exposed as a KGB forgery. See House Permanent Select
Committee on Intelligence, hearing, ``Soviet Covert Action
(The Forgery Offensive),'' February 1980, pp. 12, 13 and
Appendix: ``CIA Study: Soviet Covert Action and Propaganda,''
pp. 66 and 67; 176-185.]
It should be noted that, at the same time, Halperin's
``First Principles'' promoted Halperin's ``Organizing
Notes.'' The following appeared in the former's May `77
issue: Campaign To Stop Government Spying. The Campaign is
now publishing a monthly newsletter, Organizing Notes. It is
available free to people organizing around the issue of
government spying. Contact them at [address and telephone
number] if you would like to be included on their mailing
list.
Importantly, Halperin's ``First Principles'', like ``ON'',
also routinely gave favorable notice to the contents of
current issues of both CounterSpy and the Covert Action
Information Bulletin. In the period July-August '80 to
September-October '83, for example, at least eight issues of
CounterSpy were promoted in the pages of Halperin's ``First
Principles'', along with a fair number of the CAIB. The
following is one item that appeared in ``First Principles''
regular ``In the Literature'' section, subsection ``News-
letters, Journals, Etc'': ``Covert Action Information
Bulletin, Oct. 1981. In anticipation of Congressional passage
of the agents identities bill, CAIB publishes its last naming
names column, and indexes all previous identifications
(sic).''
And Halperin says he does not approve of ``naming names''!
If ``ON'' gave frequent favorable notice to Agee's CAIB, it
is also true that the CAIB returned the favor by drawing
favorable attention to Halperin's CPR. Examples:
Agee's CAIB editorialized on pending CIA legislative
charter proposals in its June 1980 issue. In a subsection of
the editorial, ``The Work of the Left,'' it noted:
``Throughout this Congressional debate, considerable and
effective pressure was brought to bear by the organized
opposition to government spying. The Campaign for Political
Rights (to which CAIB belongs), the Center for National
Security Studies, the American Civil Liberties Union [in all
of which Halperin played a leading role] all gathered support
against the charter . . . The struggle, to the surprise of
many, began to have results. By April, the charter was
`dead.'''
Agee's CAIB, like all Communist-left publications and
organizations, was disturbed by the fact that Executive Order
12036 governing the intelligence community and signed by
President Carter on January 4, 1978, might be amended by the
Reagan Administration in such a way as to restore some of the
capabilities the Carter decree had denied the community.
Commenting on the March 10, 1981 leak of the contents of a
new draft Reagan order, CAIB made the following statement in
its April 1981 issue: ``The proposal contains many . . .
authorizations for intrusive spying and manipulation by the
FBI and other intelligence agencies, even if all the
references to the CIA are removed. This proposal . . . also
4/81 pp. 3 & 51 must be opposed. Persons wishing further
information should write to: The Campaign for Political
Rights, [address].''
The thinking of Agee's CAIB and Halperin's CPR on the
contents of executive orders governing the intelligence
community was obviously very similar.
Under ``Other Publications of Interest'' in the July-August
issue of Agee's CAIB (p. 51), the following item appeared:
``Bugs, Taps and Infiltrators: What to do About Political
Spying,'' 6-page leaflet free (contribution welcome); from
the Campaign for Political Rights: [address given]. A brief
outline of how to look for and what to do about
infiltrators.''
[The ``Naming Names'' section of this CAIB issue identified
alleged CIA ``infiltrators'' in Canada, Central African
Republic, Ghana, Greece, Liberia, Malaysia, Mauritius,
Nigeria, Senegal, South Africa, Sudan and Switzerland.]
Halperin's ``Organizing Notes'' for 11/12/80 (p.10)
reported that on October 3, Judge Gerhard Gesell had ruled
that per the secrecy agreement signed by all CIA personnel
Agee could not publish any writing about the CIA in the
future without first submitting it to the Agency for review.
He threatened to cite Agee for contempt if he violated the
order.
At the same time, however, Gesell refused to grant the
government's request that he confiscate the profits Agee had
made from the two books he had already written in violation
of his agreement.
Why did he so rule? Halperin's ``Organizing Notes''
reported: ``The Judge based his refusal on evidence presented
by the American Civil Liberties Union's Project on National
Security [chaired by Halperin] which supported Agee's claim
that the government selectively prosecuted only its critics
for violating CIA secrecy agreements.''
The July-August '81 issue of Halperin's ``ON'' featured a
page one attack on the Supreme Court for upholding the right
of the Secretary of State to withdraw Agee's passport.
Halperin's CPR staged a forum in Washington on May 27,
1982, entitled: ``Covert Operations Against Nicaragua.'' A
publisher's order form for Agee's ``dirty Work'' and ``White
Paper? Whitewash!'' was included in each press kit
distributed at the forum.
Finally, Halperin campaigned hard against all bills
introduced to criminalize exposures of the identities of
intelligence personnel, though the Supreme Court had held (in
its Agee passport decision) that such activities ``are
clearly not protected by the Constitution.''
Halperin not only testified against the bills but induced
others to protest their enactment. ``ON'' for 7-8/81, for
example, noted that his CPR had ``coordinated'' a letter
signed by 110 law professors addressed to members of the
House Intelligence Committee and Senate Judiciary Committee
urging the amendment of H.R. 4, the intelligence agent
identities protection bill that eventually became law, in a
manner desired by Halperin (i.e., to make it ineffective)
and, the previous September, had coordinated a similar letter
signed by 50 professors.
What one newspaper described as ``a festive outdoor
ceremony'' was held at CIA headquarters in Langley, Virginia,
on June 23, 1982 where President Reagan signed into law the
Intelligence Agent Identities Protection Act (H.R. 4), which
provides for fines and prison terms for those who
deliberately disclose the identities of U.S. intelligence
personnel. The President praised CIA employees on the
occasion as ``heroes of a grim twilight struggle.'' The last
two paragraphs of the news account read as follows:
``The American Civil Liberties Union has criticized the law
as a ``clearly unconstitutional infringement on the right of
free speech.''
``Morton H. Halperin, Director of the ACLU's Center for
National Security Studies, said the organization would
provide legal assistance to ``those whose ability to speak or
write is threatened by this legislation or effort to enforce
it by the Justice Department.'' (Washington Post, June 24,
1982)
In June 1981, upholding the right of the Secretary of State
to lift Agee's passport, the Supreme Court reviewed some of
the well-publicized facts about him that should be kept in
mind as Halperin's generosity toward Agee and his apparat is
considered:
At a 1974 London press conference, Agee announced his
``campaign to fight the United States CIA wherever it is
operating'' and his intention ``to expose CIA officers and
agents and * * * drive them out of the countries where they
are operating'' while, in the U.S., he worked ``to have the
CIA abolished'' (Agee's words).
A Federal District Court had found on Agee's part ``a clear
intention to reveal classified information and to bring harm
to the agency and its personnel.''
Agee's exposures ``have been followed by * * * violence
against the persons and organizations identified.'' In 1974,
prior to the Welch murder, Agee's chief collaborator exposed
CIA personnel in Jamaica at a press conference there. Within
a few days, the home of the CIA station chief was raked with
automatic gunfire and gunfire also erupted when police
challenged men approaching the home of another identified CIA
officer.
Reviewing these and other facts, the Supreme Court found
that Agee's activities not only presented ``a serious danger
to American officials abroad and serious danger to the
national security,'' but also ``endangered the interests of
countries other than the United States--thereby creating
serious problems for American foreign relations and foreign
policy.''
As noted earlier, Agee did not do his damage to the U.S.
alone. No single person could do that. He needed his co-
workers and colleagues at CounterSpy and Covert Action
Information Bulletin to help him. He needed more than that--
the assistance of every other person who aided him in any
way. The Supreme Court's findings thus apply not only to
Agee, but also every worker for those two publications and,
it would seem to many, to others who did not support him
quite so directly, but who nevertheless helped him in very
real and important ways--people like Morton Halperin.
Speaking through others, Halperin has flatly denied that he
has ever aided or abetter Philip Agee in any way.
But what are the facts?
Agee wanted support for the various fronts setup by the
Organizing Committee for a Fifth Estate, CounterSpy's
publisher, to promote both OC-5 and the magazine. Halperin
gave him that by serving on the speakers bureau of PEPIC.
More than that--presuming he lived up to his affidavit of the
time--Halperin gave every penny he earned from his speeches
to PEPIC.
Agee wanted favorable reviews of his first book. Halperin
gave him one in the very first issue of ``First Principles.''
Agee wanted favorable notice given to both of his principal
agent exposure instruments--CounterSpy and the Covert Action
Information Bulletin. Halperin gave him that repeatedly in
both ``First Principles'' and his ``Organizing Notes.''
Agee wanted someone to represent him in his court fight to
retain the ill-gotten profits from his first two books.
Halperin gave him that through his Project on National
Security and Civil Liberties.
Agee wanted someone to absolve him of blame for the
terrorist assassination of CIA station chief Richard Welch.
Halperin gave him that over and over again--in speeches,
testimony and writing.
Agee wanted someone to dispute the statements of many
present and former CIA officials that he and CounterSpy
rather than the CIA and Welch himself were responsible for
Welch's death. Halperin gave him that repeatedly.
Agee wanted some testimony that would help him fight
deportation from Great Britain and Halperin gave him that as
well.
Halperin and the Vietnamese Communist Spy
David Truong (Truong Dinh Hung) and Ronald L. Humphrey were
arrested in January 1978 on charges of espionage, theft of
U.S. government documents and conspiracy to injure the
defense of the Unite States.
Humphrey, United States Information Agency communications
watch officer (a position giving him daily access to
sensitive cable traffic), had been taking classified
government documents, the indictment said, and turning them
over to Truong who, through couriers, had been delivering
them to North Vietnamese officials in Paris. Hanoi's
Ambassador to the UN and several other North Vietnamese
officials were named as unindicted co-conspirators, asked to
leave this country--and eventually did so.
Truong, son of a wealthy lawyer and ``peace'' politician in
Saigon (later retired in comfort in Hanoi), came to the U.S.
in 1965 to study at Stanford. After getting his degree, he
moved East, first to Cambridge and then to Washington where
he became active in the ``anti-war'' movement, established a
U.S.-Vietnamese ``reconciliation'' front, lobbied ``peace''
Members of Congress and their staffs (as Halperin did) and
gained considerable influence on the Hill.
Truong and Humphrey were tried in May 1978, convicted,
sentenced to 15 years in prison, and began serving their
terms in January 1982 after an appellate court and the
Supreme Court rejected appeals from the trial jury's guilty
verdict.
Their unsuccessful defense claim was that the documents
Humphrey gave Truong were not really sensitive, contained no
more than diplomatic chit-chat and could not harm the United
States.
Halperin supported their claims, testifying in their
defense at the trial on May 10. He doubted that some of the
cables had been properly classified; others, he claimed, were
in no way related to the national defense, and he said ``no
information'' in any of the cables the pair had given the
Communists ``could injure the United States or be
advantageous to the Vietnamese.''
He took this position despite the fact that on March 2,
1978, a week earlier, the court had taken a completely
contrary position, issuing a strict protective order ``to
prevent the disclosure or dissemination of the documents
listed in Appendices A and B, attached thereto * * * or any
portion thereof * * * or of the information contained
therein.
In addition, a string of U.S. diplomatic and intelligence
officials contradicted Halperin's testimony.
Halperin was eager to aid Truong and he did not wait until
May 10, the day he testified, to begin his assistance. In his
``Pint of View'' for the April 1978 ``First Principles'', he
attacked the Carter Administration Justice Department for
bringing the indictment (though the trial had not yet begun
and he could not have known the essential elements of the
case) and with tortured legal argument assailed the presiding
judge for his pretrial rulings in favor of the government.
Keep in mind, Mr. Halperin is not a lawyer.
Next, in another ``Point of View'' in the June 1978 ``First
Principles'', Halperin assailed both the jury for its guilty
verdict and the Carter Administration, saying the case
``raised some very serious questions'' about whether it
``understands what it is doing.''
Finally, in the September `78 ``First Principles'' he
featured a ``Guest Pint of View'' which also assailed their
conviction. It was written by Daniel Hoffman, Halperin's co-
author of ``Top Secret: National Security and the Right to
Know,'' who compared the Humphrey-Truong trial to that of the
dissident Scharansky in the Soviet Union.
Later, in its June 1981 issue, Halperin's ``First
Principles'' initiated a Letters to the Editor column. The
one and only person who had a letter published in the first
column was David Truong who, of course, attacked the US
justice system, writing of ``the government's evident
misbehavior'' and the ``glaring denial of due process'' in
his trial.
``Organizing Notes'' of Halperin's CPR was as assiduous in
trying to help Truong as was Halperin himself in ``First
Principles.'' The issue of January-February 1979, for
example, reported that Truong's attorneys had filed an appeal
brief listing 14 reasons why the guilty verdict should be set
aside and that it would be argued before the appellate court
sometime in the spring; ``Contact Vietnam Trial Support
Committee,'' it said and gave the address and telephone
number of the group that had been set up in Washington to
raise funds for, and otherwise assist, Truong fight his case.
The July-August '80 issue of ``Organizing Notes'' reported
that on July 17 a panel of the Court of Appeals for the
Fourth Circuit had declined to review the lower court verdict
and that Truong's lawyers would move for a rehearing before
the full court: ``For further information: Vietnam Trial
Support Committee,'' again followed by the group's Washington
address.
The July-August '81 issue of ``Organizing Notes,'' the
periodical published by Halperin's CPR, reported that to
raise funds for Truong's defense, limited edition silkscreen
posters, each one signed and numbered by the artist, were
available for $15 each in quantities up to 100, and $10 each
for 101 to 405 copies (plus $1.50 each for postage and
handling): ``Vietnam Trial Support Committee, followed by the
committee's address and telephone number.
``Truong Case Raises Important Physical Search Issues'' a
January-February '82 issue article headline in ``Organizing
Notes'' announced. The article ended with an ironic
paragraph: ``As we go to press * * * The Supreme Court on
January 11 denied David Truong's petition for a writ of
certiorari, thereby precluding the possibility of further
review of the case. As such, Truong's 1978 conviction will
stand.''
Not only the Court of Appeals, but in effect the Supreme
Court, had rejected Halperin's specious arguments in defense
of Truong.
A final note: Truong was free on $250,000 bail pending the
outcome of his appeal from conviction when, in February 1979,
Halperin's CPR held a party in Washington to celebrate the
release the ``The Intelligence Network,'' a propaganda film
directed against the CIA, FBI and other US intelligence
agencies. David Truong showed up at the celebration. Halperin
smiling, posed with him for a press photo.
Halperin and The Pentagon Papers Case
The so-called ``Pentagon Papers'' were a 47-volume, 2\1/2\
million word collection of government documents relating to
the Vietnam War assembled per a June 1967 directive of
Secretary of Defense Robert McNamara by a team of about three
dozen Defense Department employees, including Halperin, then
a deputy assistant secretary. Completed in 1969, its contents
were classified TOP SECRET-SENSITIVE by Leslie H. Gelb, who
directed the project, Halperin and two McNamara military
assistants.
Two former Defense and Rand Corporation employees, Daniel
Ellsberg and Anthony Russo leaked copies of 43 volumes of the
compilation some time later with the result that in mid-June
1971, while the U.S. was still fighting in Vietnam, the New
York Times, Washington Post, and Boston Globe began
publishing excerpts from them.
Former President Lyndon Johnson termed the leak ``close to
treason.'' General Hyman and Lemnitzer, Chairman of the Joint
Chiefs of Staff early in the war and later Supreme Commander
of NATO, denounced it as ``a traitorous act.''
The Nixon Administration had twice denied requests from
Senator Fulbright (D-Ark) for copies of the Papers on the
basis of Defense Department reviews which concluded that
``the material, in our judgment, was of such a high degree of
sensitivity that it should not be transmitted outside the
executive branch.'' The DOD review of Fulbright's second
request was continuing just a week before the Times began
publication on June 13.
The government immediately asked for a court injunction,
saying further publication would pose ``a grave and immediate
danger to the security of the United States.'' A temporary
stay was granted on June 27, but the Supreme Court reversed
it three days later, ruling 6-3 that, in light of First
Amendment rights, the government had not met the ``heavy
burden'' of justifying prior restraint.
Ellsberg and Russo, the admitted purloiners of the Pentagon
Papers, were indicated on 15 counts involving violations of
the Espionage Act, stealing government property, and
interfering with the control of classified information.
Halperin traveled to Los Angeles where the trial was held
and remained for five months, reportedly as leader of a team
of about 35 left-wing activist and lawyers assembled to work
for their acquittal (Ellsberg's chief defense counsel was the
late Leonard Boudin, a leading member of the National Lawyers
Guild and, according to a Federal court exhibit, a former
member of the Communist Party's National Committee; also, of
course, the father of Kathy Boudin, convicted in the 1981
terrorist Weatherman Nyack, N.Y. Brinks robbery-murders.
Halperin also testified as a defense witness for the pair,
making the fantastic claims that, in his view, the Pentagon
Papers were not government documents but the personal
property of himself, Gelb and former Assistant Secretary Paul
Warnke; that they had been improperly classified, and
contained no information that would benefit an enemy of the
U.S.
He was flatly contradicted on every point by other
witnesses. Gelb, for example, testified, ``I did not regard
the documents as my personal property.'' FBI agent Earl C.
Revels testified that when he first interviewed Halperin
about the leak, Halperin had told him that he, Warnke and
Gelb had delivered a 38-volume set of the papers to the
Washington office of Rand as agents of the U.S. government;
also that he had twice refused to grant Ellsberg access to
the study, but had finally done so though he feared Ellsberg
might be ``indiscreet'' in handling it. In addition, several
high-ranking military officers pointed out how hostile powers
could benefit from information in the Papers.
The chief prosecutor, David Nissen, charged during
Halperin's March 23, 1973 testimony that Halperin had himself
violated security regulations by taking classified documents
when he left government service--a charge later affirmed in
the brief submitted to a Washington court by the Carter
Administration in 1978.
The question of Ellsberg-Russo's guilt or innocence was not
settled by the court. A number of factors developed which
convinced the trail judge that separating legitimate from
illegitimate evidence was ``well-nigh impossible.'' He
therefore dismissed the case.
One of the complications was that Ellsberg, a guest in
Halperin's home for a time during the period a warrantless
national security wiretap was in place on Halperin's phone
(May 1969-February 1971), had been overhead on the tap 15
times and the government took the position that, for national
security reasons, the contents of the taps could not be
disclosed.
The previously-mentioned Supreme Court decision denying the
government request for a ban on further publication of the
Pentagon Papers provided telling commentary on Halperin's
testimony in the Ellsberg-Russo trail. Appended are excerpts
from that decision which clearly indicate that a majority of
the justices were convinced that--contrary to his testimony--
the Papers contained sensitive information the release of
which would warrant prosecution under security statutes.
New York Times Co. v. United States 403 U.S. 713(1971)
Excerpts From the Decision
Justice Stewart (one of the majority), with Justice White
(also of the majority) concurring, noted that the Court has
been asked to prevent publication of material the Executive
Branch ``insists should not, in the national interest, be
published.'' He wrote: ``I am confident that the Executive is
correct with respect to some of the documents involved. But I
cannot say that disclosure of any of them will surely result
in direct, immediate and irreparable damage to our Nation or
its people,'' so he had to join the majority in denying an
injunction.
Justice White, with Stewart concurring, said that after
examining the materials the government said were ``the most
sensitive and destructive'' he could not deny that revelation
of them ``will do substantial damage to public interest.
Indeed, I am confident that their disclosure will have that
result * * * because the material poses substantial dangers
to national interests and because of the hazards of criminal
sanctions, a responsible press may choose never to publish
the more sensitive materials * * * a substantial part of the
threatened damage has already occurred. The fact of a massive
breakdown in security is known, access to the documents by
many unauthorized people is undeniable.''
Termination of the ban on publication by this Court, White
continued in a blunt warning, ``does not mean that the law
either requires or invites newspapers or others to publish
them or that they will be immune from criminal action if they
do * * * failure by the Government to justify prior
restraints does not measure its constitutional entitlement to
a conviction for criminal publication.''
``The Criminal Code contains numerous provisions
potentially relevant to these cases * * * I would have no
difficulty in sustaining convictions under these sections.''
Justice Marshall: ``At least one of the many statutes in
this area [control of sensitive information] seems relevant
to these cases.''
Chief Justice Burger, a dissenter, deplored the haste with
which all proceedings in the case had been held: ``We do not
know the facts of the cases. No District Judge knew all the
facts. No Court of Appeals Judge knew all the facts. No
member of this Court knows all the facts * * * because these
cases have been conducted in unseemly haste * * *''
``To me it is hardly believable that a newspaper long
regarded as a great institution in American life (the New
York Times) would fail to perform one of the basic and simple
duties of every citizen with respect to the discovery or
possession of stolen property or secret government documents.
that duty, I had thought--perhaps naively--was to report
forthwith to responsible public officers. This duty rests on
taxi drivers, Justices, and the New York Times. The course
followed by the Times, whether so calculated or not, removed
any possibility of orderly litigation of the issues * * *''
``The consequence of all this melancholy series of events
is that we literally do not know what we are acting on * * *
the result is a parody of the judicial system * * *''
``I should add that I am in general agreement with much of
what Mr. Justice White has expressed with respect to penal
sanctions concerning communication or retention of documents
or information relating to the national defense.''
Justice Harlan, also dissenting, with the Chief Justice and
Justice Blackmun joining, cited chapter and verse of the
haste mentioned by the Chief Justice and said: ``With all
respect, I consider that the Court has been almost
irresponsibly feverish in dealing with these cases.''
Justice Blackmun, the third dissenter, said he, too, was in
``substantial accord'' with what Justice White had said about
criminal prosecution. He added: ``I strongly urge, and
sincerely hope, that these two newspapers [the New York Times
and the Washington Post] will be fully aware of their
ultimate responsibilities to the United States of America * *
* I, for one, have now been able to give at least some
cursory study not only to the affidavits, but to the material
itself. I regret to say that from this examination I fear
that Judge Wilkey's statements [expressed in his Washington
Post decision] ``have possible foundation. I therefore share
his concern. I hope that damage has not already been done.
If, however, damage has been done and if, with the Court's
action today, these newspapers proceed to publish the
critical documents and there results therefrom what Wilkey
feared as possible, `the death of soldiers, the destruction
of alliances, the greatly increased difficulty of negotiation
with our enemies, the inability of our diplomats to
negotiate,' to which list I might add the factors of
prolongation of the war and of further delay in the freeing
of United States prisoners, then the Nation's people will
know where the responsibility for these sad consequences
rests.''
____________________