WASHINGTON — When a former communications specialist for the National Security Agency, comes to trial on charges of espionage, the government will have to decide how much to reveal about the highly sensitive secrets he is charged with having sold to the Soviets.
Ronald W. Pelton's trial may begin this week. According to pretrial proceedings and court papers, Pelton strolled into the Soviet Embassy in 1980 and told the Soviets about a top-secret National Security Agency intelligence-gathering program targeted at the Soviet Union. The Soviets were obviously interested--in the information and in protecting Pelton. They had him shave off his beard before leaving the embassy so that he would not be recognized. He was arrested only last November, after a tip from a Soviet defector.
Now, however, the director of the Central Intelligence Agency, William J. Casey, is worried that details of the NSA operation have already begun to leak to the press. The CIA director apparently wants the Administration to prosecute the news media to dam up what he sees as a torrent of leaks. Casey softened his position a little last week, but not much.
The press is constitutionally protected and prosecution by the government would be unprecedented. But there are those who believe that such action was foreshadowed by the case of Samuel L. Morison. When the Navy intelligence analyst was convicted of espionage for leaking spy-satellite photographs to a British magazine, the federal prosecutor stood on the courthouse steps and scoffed at journalists who suggested the case was a threat to freedom of the press.
"Remember," said Michael Schatzow, the assistant U.S. attorney in Baltimore, "the same picture was published by the Washington Post and the TV networks, and nobody has prosecuted them."
That was in December. Early this month, Casey did exactly what many editors and reporters were worried about: He went to the Justice Department and discussed the possible prosecution of the Washington Post and four other publications for publishing stories about U.S. intelligence-gathering. The CIA director seemed particularly upset about stories dealing with communications intelligence--NSA's ability to intercept the messages of other nations.
Casey met with Dep. Atty. Gen. D. Lowell Jensen on May 2, and later that day warned two editors of the Post that he had "five absolutely cold" violations of the espionage laws by that newspaper, the New York Times, Time, Newsweek and the Washington Times. He said all five had violated a section of the Espionage Act that bars the publication of stories about communications intelligence.
The law in question is Section 798 of Title 18 of the U.S. Code; it was enacted in 1950 but has never been applied to government officials who leak--or to reporters who receive those leaks. It forbids transmittal or publication of classified information about codes, cryptographic equipment, intercepts of communications or the contents of intercepts. Violators are subject to a fine of $10,000 and 10 years in prison.
Casey also issued an advance warning, telling the Post editors that the newspaper might be prosecuted if it published another story. That story, officials here say, told of the same NSA intelligence-gathering operation that is the subject of the Pelton case.
By last week, Casey had backed down somewhat, saying he did not favor prosecuting the press for recent "past offenses." But he implied he would push for indictments if there were future violations. "The law . . . dealing with communications intelligence must now be enforced," he said.
The Justice Department has not embraced Casey's get-tough policy with enthusiasm, although Atty. Gen. Edwin Meese III has never ruled out prosecution of the media. "I think it depends on the circumstances of the case," he told a press conference last year.
Nor is Casey's anti-leak rhetoric without precedent. Only last month the Pentagon dismissed a senior official, Michael E. Pillsbury, for having allegedly leaked a report that the Administration was about to supply rebels in Angola and Afghanistan with Stinger anti-aircraft missiles.
The Administration is closely watching the outcome of the Morison case. The former Navy analyst, grandson of the late Samuel Eliot Morison, the Harvard historian, is free on $100,000 bail while he appeals his two-year prison sentence.
Morison's lawyer, Mark Lynch, points out that his client is the first leaker to be convicted and only the second to be tried. The first was Daniel Ellsberg, the man who leaked the Pentagon Papers to the press; his case was thrown out of court because of improper activities directed against him by the Nixon White House.
In his appeal, Lynch plans to emphasize that the Espionage Act was passed to catch spies, not to deal with leaks by government officials to the press. Indeed, precisely because no specific law against leakers exists, the CIA has tried for years to get Congress to pass one.