Going after journalists who reveal classified information and those who leak it -- déjà vu all over again?
In late May of 1975, Americans awoke to the headline "Submarines of U.S. Stage Spy Missions Inside Soviet Waters" on the front page of The New York Times. The story, by investigative reporter Seymour Hersh, gave details of how the highly classified Navy missions were tapping into Soviet communications.
The Ford White House was disturbed by the revelations, and the president's chief of staff, Donald Rumsfeld, wanted action. His young deputy, Dick Cheney, began gathering and assessing the options, and his notes and memos were first described in Challenging the Secret Government: The Post-Watergate Investigations of the FBI and CIA, a book by University of California, Davis Professor Kathryn S. Olmsted. FRONTLINE obtained Cheney's notes from the Gerald R. Ford Presidential Library.
The notes reveal how Cheney went about considering a response after collecting and synthesizing the opinions of others in the administration. In handwritten notes, dated three days after the article was published, Cheney asks: "What does the law say -- is there a violation?"
He then lays out options, discussed with Attorney General Edward Levi and White House Counsel Philip Buchen, including:
- An FBI investigation of the Times, Hersh and/or "possible gov't sources";
- Grand jury indictments of Hersh and the Times;
- A search warrant "to go after Hersh papers in his apt";
- Informally discussing the incident with the Times;
- "Do nothing".
Cheney speculates that a disillusioned former CIA officer could be one of Hersh's possible sources. He also weighs the strength of the government's case; the political considerations -- including avoiding "the Pentagon Papers syndrome"; and the timing of when the investigation would become public knowledge.
The following day, in another note, Cheney outlines the government's six goals if it were to take action:
- Enforcing "the law which prohibits such disclosure";
- Discouraging the Times and others from similar publications;
- Finding and prosecuting the person who leaked the information;
- Discouraging others from leaking;
- Demonstrating "the dangers to nat'l security which develop when investigations exceed the bounds of propriety";
- Creating "an environment in which the ongoing investigations of the intelligence community are conducted without harming our intelligence capabilities".
The same day, he sends a memo updating Rumsfeld, who is in Brussels on a presidential trip, on the administration's options. Attached is an eight-page memo from Attorney General Levi, who outlines the options. However, Levi notes two significant problems with pursing legal action: 1) much of the material in the Times article had been published more than a year earlier in an article by Laurence Stern in The Washington Post; and 2) in prosecuting, the government would be forced to confirm and prove the new disclosure that U.S. submarines were tapping into Soviet undersea cables. "This would put an official stamp of truth on the article," Levi writes, "and could have diplomatic consequences which would otherwise not follow from an unofficial account." Levi also warned that prosecuting Hersh, who was unlikely to reveal his sources, "would also turn the case into a cause celebre."
It's not known whether the government took similar steps to investigate the first "leak," which occurred during the Nixon administration. Stern, who died in 1976, had reported the existence of the program and its code name, going so far as to characterize it as "probably the most hush-hush of all U.S. electronic intelligence operations." Hersh, who cited Stern's article, reported that the Post article had "angered" the Pentagon, but that "no significant modification of the operation took place," despite the fact that the Russians seemed to be "increasing their efforts against the reconnaissance missions."
In the end, although the file from the Ford Library includes a letter dated June 2 from Deputy Attorney General Harold R. Tyler to CIA Director William Colby with the list of 11 questions intelligence agencies need to answer in order to open a leak investigation, ultimately the government didn't go after Hersh or the Times. In his interview with FRONTLINE, Hersh shrugs off the incident. "At the time, I didn't think it was serious. ... Somebody in Justice warned me they were looking at me. Duh. Big deal. It didn't happen."
As for the Bush administration prosecuting reporters under the Espionage Act, Hersh is skeptical: "Underneath all of this bluster and talk and threats, anybody knows that if they make a serious move on the First Amendment, they do so at their political peril."
Lowell Bergman is the correspondent and Marlena Telvick is a reporter and series associate producer for News War.