United States v. MorisonUnited States v. Morison
MEMORANDUM AND ORDER
Samuel Loring Morison is charged with releasing copies of three photographs, classified “secret,” to
Jane’s Defense Weekly
(“Jane’s”), a British magazine. Morison had been associated with
Jane’s
prior to the time that the photographs were released and was paid as an American “editor” of
Jane’s.
Count I of the Indictment charges that Morison wilfully caused the photographs, which allegedly related to the national defense, to be transmitted to a person not entitled to receive them, in violation of
Morison is also charged with two other counts arising out of a separate incident. During the spring of 1984 there was an explosion at Severomorsk, a Soviet naval base in the Kola Peninsula. Subsequently, analysts at the Naval Intelligence Support Center (“NISC”), where Morison was employed, did a report, based on classified information, concerning the nature and extent of the damage to the base. That analysis was reported in one of NISC’s “Weekly Wires.” When Morison’s residence was searched, pursuant to a warrant following his arrest, xeroxed pages cоntaining that analysis were found in an envelope marked “Derek Wood.” Derek Wood was later found to be one of Morison’s contacts at
Jane’s.
When the typewriter ribbon from Morison’s office was analyzed it was discovered that Morison had typed a letter to Derek Wood summarizing the contents of that analysis. Count III charges Morison with unauthorized possession of classified documents, wilfully retaining them and failing to deliver them to the officer or employee of the United States entitled to receive them, in violation of
Defendant Morison has filed this motion to dismiss the Indictment based on a number of grounds. He claims that the law under which he is charged in Counts I and III of the Indictment,
The relevant law under which Morison is charged in Counts I and III is found in
Morison is also charged under
Morison alleges that
Morison’s first attack on
The government has responded to this assertion by noting that the statute does contain an intent requirement, although not the same requirement that was contained in the
Gorin
statute.
Thus, although there is an intent requirement, the “delimiting” intent to injure the United States is not present in this statute and defendant argues that it is therefore impermissibly vague. Unfortunately for the defendant’s argument, the Fourth Circuit has addressed this issue and found that a similar statute was not unconstitutionally vague. In
United States v. Dedeyan,
In his reply brief, defendant argues that the holding in Dedeyan should not be controlling because Dedeyan involved the classic espionage situation, while this case arguably does not. In Dedeyan, the defendant was accused of knowing that the document had been abstracted by his cousin, a Russian spy, and failed to report it. Here, the situation is slightly different because it does not involve a foreign agent or the classic spy scenario. Rather, the defendant is accused of releasing classifiеd information to the press, thus exposing that classified information to every foreign agent and government, hostile or not, in the world.
Defendant cites an impressive wealth of legislative history suggesting that
While it is, of course, impossible to determine exactly what Congress meant when it passed the statute, it is more likely that the type of activity that defendant allegedly engaged in was meant to be covered. Congress could very easily have meant, when it used the word “spy,” one who used his position and classified security clearance to obtain information to which he would not otherwise be entitled and release it to the world. *
*660
If Congress had intended this situation to apply only to the classic espionage situation, where the information is leaked to an agent of a foreign and presumably hostile government, then it could have said so by using the words “transmit ... to an agent of a foreign government.” In
Finally, the danger to the United States is just as great when this information is released to the press as when it is released to an agent of a foreign government. The fear in releasing this type of information is that it gives other nations information concerning the intelligence gathering capabilities of the United States. That fear is realized whether the information is released to the world at large or whether it is released only to specific spies.
Defendant claims that by enforcing this statute in the present case involving the release of information to the press, this Court would be writing a new law, a task, it is argued, better left to the legislature. On the contrary, to read into the statute the requirement that it apply only in “classic espionage” cases where thе disclosure is to an agent of a foreign government would be to ignore the plain language of the law as presently written. The statute clearly applies to disclosures of information relating to the national defense to those “not entitled to receive” such information. Any requirement that those not entitled to receive also be foreign agents must be added, if at all, by Congress.
Defendant also claims that if
OVERBREADTH
Defendant also contends that
Defendant next argues that the phrase “not entitled to receive” is also unconstitutionally vague, in that it fails to inform a citizen of whether his conduct is prohibited. Morison claims that because the phrase “not entitled to receive” has never been conclusively defined, there is an ambiguity in the statute that leads to an uncertainty as to the statute’s application. Morison notes that the General Counsel to the CIA has informed Congress that
appellants, at the time of the crime a current and a former employee of the' DEA, must have known that the sale of DEA confidential law enforcement records was prohibited. The DEA’s own rules and regulations forbidding such disclosure may be considered as both a delimit and a clarification of the conduct proscribed by the statute, [citations omitted]
Applying that same principle here, it seems clear that authorization to possess documents and entitlement to receive them may be determined by reference to the classification system under which the defendant worked.
Defendant argues that the classification system should not be usеd to give content to the phrase “not entitled to receive” because Congress has on several occasions declined to enforce the classification system with criminal sanctions, and the court in giving the phrase that construction would do what Congress had declined to do. On the contrary, the President has established a system of classification and this Court may enforce it. Congress has recognized the classification system and given its support to the determination by Executive Order of who is authorized to possess and who is not authorized to possess classified informаtion,
i.e.,
in the Freedom of Information Act, the Internal Security Act of 1950, and in
Defendant has argued thаt even if this construction is given to the statute, the statute is impermissibly vague because then an individual would be left to make the determination of who has the “need to know,” and therefore the right to receive classification information. There can be no argument of such vagueness here, where the defendant released the information to Jane’s, which had neither a security clearance or a need to know.
The Fourth Circuit has also relied on the classification system to approve a trial court’s definition of “unauthorized possession” in terms of appropriate security clearance and performance of official duties.
See United States v. Truong Dinh Hung,
Section 793(e) contains another possible ambiguity. It punishes only those who have “unauthorized possession” of national defense information. The trial judge provided adequate content for this phrase by advising the jury that a person would have authorized possession if he had an appropriate security clearance and if he gained access to the document because it was necessary to the performance of his official duties.
SELF-INCRIMINATION
Morison also argues that
CONSTRUCTION OF “WILFULLY”
In his reply brief, the defendant has argued that the Indictment should be dismissed because the government has no intention of proving the requisite level of culpability. This is evident, argues the defendant, from the government’s contention that it must only show that the disclosure or retention was done “wilfully,” which the government defines as “an intentional violation of a known legal duty,” citing
United States v. Pomponio,
It seems clear that either under the government’s definition of “wilfully” or under Morison’s definition, the government need not prove evil purpose. Morison may plan to argue that he disclosed these photographs in the interest in public discussion of defense, that his motives were only the best, and that therefore he is not guilty.
Morison urges that the requirement that acts be done wilfully translates to a requirement that they be done with some evil purpose and that if he acted with an intent tо inform the public he did not have the requisite evil purpose. He urges this Court to adopt a construction of the word wilfully used in
Hartzel v. United States,
APPLICATION OF SECTION 641 TO THEFT OF CLASSIFIED INFORMATION
As the defendant properly notes, there has been no definitive court test of the applicability of
However, in
Truong,
Judge Winter wrote a separate opinion indicating that he would have reached the
The government has argued that Judge Winter’s conclusion is wrong, that it disregards the fact that Congress at different times may, in different ways, reach the same conduct with different criminal statutes. The language of the statute reaches “intangibles” such as information, and the government argues, thus the theft of classified documents would be covered by such a statute.
However, the Court does not have to grapple with the separate opinion in
Truong.
That portion of the opinion was statеd in a case where the majority did not reach the issue and it is not controlling. The Court also notes other district courts have allowed prosecution under
Defendant has also argued that even if
These arguments have little to do with this case. It is most doubtful that Morison was asserting a First Amendment right in selling photographs and documents to
Jane’s.
Where the phrase “without authority” is given content by reference to the classification system, then the disclosures that could be punished under
Finally, the defendant has argued that the government cannot establish the theft of a thing of value worth more than $100 and the Indictment should be dismissed. Morison argues that the statute applies only to things, not to intangibles, but that argument has been rejected by many courts.
See, e.g., Girard,
The government has asserted that it will prove that the things were worth more than $100, and they must be given an opportunity to do so. A reading of the statute would indicate that the value of the “thing” is determinative only of the appropriate penalty. Finally, the statute itself defines one measure of “value” as “market value” and the government has *665 alleged that the market value of these documents is greater thаn $100, as evidenced by the fact that Jane’s paid more than $100. The Indictment will not be dismissed because of this claim.
Notes
The dictionary (Webster's Third New International Dictionary [unabridged] (1971)) defines "spy” as "one who keeps secret watch upon a person or thing to obtain information; one engaged in seeking strategic unrelated information about a country or people by secret methods of infiltration or investigation.” Only one definition mentions the requirement of transmission to foreign agents which defendant argues is so crucial to the congressional intent: "one who acts in a clandestine mаnner or on false pretenses to obtain information in the zone of a beligerent with intention of communicating it to the hostile party.” It is also conceivable that *660 Congress, in 1950 when the statute was amended, would have considered a person who "leaked” national defense information to the press a "saboteur” or one who would "weaken the internal security of the Nation" and thus subject to prosecution under the provision of the statute.
The best guidance in determining the intent of Congress, and the first place for this Court to look in construing the statute, is the wording of the statute itself.