BOSTON — It sits on the statute books like an unexploded bomb left over from World War II. Until recently few people had ever heard of the communications intelligence statute. Today it is becoming one of the most feared laws in journalism. Within the last few months Central Intelligence Agency Director William J. Casey has used the statute to threaten the Washington Post, request prosecution of an NBC reporter and warn two authors that their yet-to-be published books might violate the law. It is no idle threat. Penalty for violation is a prison term of up to 10 years and a fine up to $10,000.
Known formally as Title 18, Section 798 of the U.S. Code, the communications intelligence statute makes it a crime for anyone to publish or disclose any classified information dealing with U.S.--or even foreign--code-making, code-breaking or eavesdropping activities. These are the principal activities of the supersecret National Security Agency, the statute's major beneficiary. Although the law has never been used against anyone in the media, and only in a few espionage cases, that will change if Casey has his way.
On June 19, Casey contacted Seymour M. Hersh, author of a book (due in the fall) on the downing of Korean Airlines Flight 007 over the Soviet Union, and Robert U. Woodward, who is working on a book on Casey and his Central Intelligence Agency; he warned both writers against release of any information involving communications intelligence. This warning was apparently intended to cause the authors to reconsider some of the material in their books and put them on notice should an indictment be sought.
Casey's warning to Hersh points out one significant problem with the statute. It is almost impossible to write about a major incident, such as the KAL tragedy, without touching in some way on communications intelligence. Originally, the statute was intended to cover only a very small, narrow area of intelligence. But today the situation is reversed. Communications intelligence is the principal form of intelligence collected. Information picked up by human agents is minuscule by comparison. Thus, a hard-hitting story about the bombing of Libya, the John A. Walker Jr. and Ronald W. Pelton spy cases or Middle East terrorism would all require significant discussion of communications intelligence.
From the start, the Reagan Administration seemed anxious to dust off the old statute and get some use out of it. The first case involved a book I had written on the National Security Agency, "The Puzzle Palace," which, the government claimed, contained classified communications intelligence information. Part of this information came from a report that the Justice Department had declassified and released to me, only to have it reclassified as "top secret" by the NSA. At the urging of the NSA, the Justice Department threatened prosecution under the Espionage Act. But since the executive order on secrecy specifically said that a declassified document could not be reclassified, they decided they could not prevent publication.
Within days of the September, 1982, publication, however, the NSA conducted an internal "damage assessment" and recommended to the Justice Department that I be prosecuted under the communications intelligence statute. The Justice Department, after conducting its own review, declined to act. Nonetheless, the NSA sent several agency security officials to one library I used and ordered them to remove from shelves and stamp "secret" many unclassified, non-government research materials that I had quoted.
The statute was also used following the arrest of Pelton, a former NSA employee who was a specialist in converting intercepted Soviet signals into signals compatible with NSA receiving equipment. The Washington Post received early details on one operation that Pelton had revealed to the Soviets. This project, code-named Ivy Bells, involved a submarine penetrating the Sea of Okhotsk, in the Soviet Far East. Once on the bottom, the sub would conduct a "lock out" operation, releasing several divers to attach a "bug" to an undersea communications cable. It would be similar to a Soviet sub attaching a listening device to a cable running from Florida to Texas under the Gulf of Mexico.
As a result of a warning by Casey and NSA Director Lt. Gen. William E. Odom that publication might violate the communications intelligence statute, the newspaper held off publication several times and finally released a less detailed version of the story. A day earlier, James Polk of NBC News had mentioned a submarine mission in Soviet waters and an angry Casey formally recommended his prosecution under the statute.