Don't Ask; Don't Tell

Seymour M. Hersh is the author of numerous books, including "'My Lai 4" and "The Dark Side of Camelot." He is a former investigative reporter for the New York Times

Frank Snepp had all the classic ingredients of a successful CIA operative. He was brilliant, manipulative and disinclined to trust others. He also had the courage and the integrity to risk his career for the truth, and in 1977 published "Decent Interval," a scathing critique of the CIA's bumbling, lying and arrogance in the last months of the Vietnam War. Snepp, who served as an intelligence analyst in Saigon, betrayed no names, no operations and no significant intelligence information. It was his finest moment.

It changed nothing. The institution issued a series of blanket denials and rode out the brief public outcry. Snepp was assailed in public not for betraying secrets but for violating a fiduciary trust. He was accused of lying about his intentions to the men in charge and falsely assuring them that he would submit the book for security review before publication. The CIA took its battle to the federal courts and won across the board. Snepp was compelled to return all profits from "Decent Interval" to the U.S. Treasury and further ordered to present all of his future writings, including fiction, to the CIA for prior review.

Now, more than 20 years after the fact, Snepp gives us "Irreparable Harm," his account of the lost battle. It's the same old Frank Snepp--self-pitying, with little charity for others, yet capable of excruciating honesty. I'm still agog over his attempted manipulation of me at the time "Decent Interval" was published, as described in his new book, but then--and now--his character defects seem trivial when contrasted to the importance of his message and the government's successful drive, with the help of the federal courts, to behead the messenger.

Snepp's main revelation in "Decent Interval" was that the CIA had betrayed thousands of its employees and collaborators in South Vietnam by failing to evacuate them before the North Vietnamese onslaught that ended the war in May 1975. The CIA's men and women in the field had been left behind, Snepp wrote, because those in charge--including the American ambassador, the CIA station chief, and Secretary of State Henry A. Kissinger--had disregarded intelligence showing that the North Vietnamese would directly attack Saigon. Until the furor over his book, the American leadership had maintained that the last-minute evacuation of more than 50,000 Vietnamese was a success. But Snepp accused senior CIA officials of failing to take care of their own by helicoptering away from agency outposts without destroying sensitive documents and without arranging for the evacuation of all. Many of those left behind spent years in Communist reeducation camps.

Snepp went beyond the evacuation failure to provide a devastating account of day-to-day CIA operations during the war. He wrote of highly classified intelligence that was routinely declassified--if favorable to the official position--and made available to visiting delegations of congressmen. He also told of the one-for-one prisoner exchange that was rejected in 1971 at the agency's recommendation because the American involved, a foreign service officer named Douglas K. Ramsey, was seen as too low-level. A second trade proposal the next year involving Ramsey was rejected, Snepp wrote, because his CIA superiors feared that Ramsey had somehow learned of the earlier offer and, once released, would tell the world about it, provoking an anti-CIA backlash. Ramsey spent seven years in captivity.

Little of this would have been known without Snepp. "Decent Interval," about which I wrote a long account in the New York Times in November 1977, a few days before its official publication, was an astonishing first book--brilliantly argued and elegantly written. Saigon's last days made vivid reading.

Frank Snepp's last days as recounted in "Irreparable Harm," aren't nearly as much fun to read. For one thing, as an obsessively detailed account of what happens to a CIA whistle blower, it's bad for my business. In Snepp's version, guys like him tell their story to guys like me, get their 15 minutes of fame, a few television appearances, maybe a book contract and then slowly recede into oblivion, saying more and more and being listened to less and less. Here is Snepp's description, circa 1978, of his first meeting with ex-agent Victor Marchetti, who broke with the CIA and published a devastating expose at the height of the Vietnam War: "[T]he potbellied munchkin with the double chin and Buddy Holly glasses who greeted me was so unrelentingly pathetic that I found myself mumbling apologies for even disturbing his evening."

And yet, it was Marchetti who gave Snepp the most accurate and heartfelt description of what was to come. At the end of their first meeting, writes Snepp, Marchetti "embraced me hard. 'From now on,' he said, 'You're gonna be an outlaw, a gunslinger all by yourself. And every time you walk down the street there's gonna be somebody waitin' to take a shot at you.' "

The somebody in Snepp's case was Stansfield Turner, a retired admiral who was Jimmy Carter's appointee as CIA director. Turner was convinced that Snepp had been guilty of a personal betrayal and insisted that the U.S. government go after him with a vengeance. Turner, an outsider, was increasingly becoming aware by late 1977 of the CIA's many institutional problems, but Snepp and his revelations about the mess in Saigon were never put in that category. The defining issue for Turner was his belief that Snepp had given his word that he would submit the manuscript of "Decent Interval" to the CIA before publication for security review.

Snepp says repeatedly in his memoir that this wasn't so. In his view, he was only obligated to submit classified information to the CIA for prior review and, because no secret information would be included, there was no need to do so. But, he also writes, he never got around to saying as much to the CIA. After a meeting with Turner at CIA headquarters, Snepp writes, a CIA lawyer wrote him to confirm that his signed secrecy agreement--Snepp had signed six such agreements while in the CIA, all dealing with classified data--was a "valid contract" compelling him to clear his manuscript in advance. "In view of your assurances that you will do so," the letter continued, "we consider that the matter has been resolved." At that time, Snepp did not accept the CIA's premise but chose "to stay silent" and not respond to the letter. He rationalized his lack of candor by noting that he had repeatedly urged the agency after the war to investigate its handling of the evacuation and had been rebuffed by all. He also was convinced, with some justification, that his book would be shredded by the CIA's censors.

In "Irreparable Harm," Snepp acknowledges that he misled Turner and the CIA lawyers, who assumed after their meeting that he would abide by the security requirements. Snepp was convinced, nonetheless, that he had the law on his side: As long as no secrets were betrayed, the CIA could do nothing. Talkative former CIA operatives were a nuisance and perhaps even a disgrace, in the view of many government officials, but they had 1st Amendment rights, too.

After the publication of "Decent Interval," with its devastating message, Snepp became the object of a government witch hunt via the courts. The government's argument was novel--that Snepp, because he had been exposed to official secrets, was a fiduciary, or trustee, of the CIA who had abused the agency's trust. No secrets were violated in the book, the government acknowledged, but the publication of Snepp's book, a Justice Department brief maintained, "severely hampers the Central Intelligence Agency's ability to gather intelligence, which in turn adversely affects the United States' ability to maintain an effective defense."

It was an argument that was easily shredded, not only for its disregard of the free speech clause of the Constitution, but because the CIA had taken no action against a number of memoirs, published without prior review by former agents, that contained no secrets but were favorable to the agency. "Decent Interval" was being challenged because of the opinions it expressed.

What Snepp and his lawyers obviously underestimated was the extent to which Snepp's deceit motivated the government. I vividly recall Turner's anger when I telephoned him with the news that "Decent Interval" had been published and would arrive within days in bookstores across the nation. He told me that Snepp had given him his personal assurance that he would provide the agency with an advance copy of the book. "It's one thing to go ahead and take your chances," Turner said, "but it's another thing to deliberately mislead."

A more traditional CIA director might have admired Snepp's effrontery in attempting to scam the men at the top; such capers, after all, are a way of life for intelligence operatives. But Turner quaintly believed, unlike some in the agency, that two and two were always four.

Snepp's deviousness not only energized the CIA but the federal court system. Much of "Irreparable Harm" depicts Snepp's sad ride from a bizarre trial before a scandalously biased federal judge in northern Virginia, to the 4th Circuit Court of Appeals in Richmond and finally to the Supreme Court. The dreary account is must reading for every law student in America, and for every burgeoning nihilist. Each court focused on Snepp's deceit, and ignored the law--that is, the fact that at the time, there was no statute that gave the U.S. government the right to review Snepp's future work in advance, if intelligence secrets were not at risk.

Snepp's worst moment came in February, 1980, when the Supreme Court, citing "Snepp's unfaithlessness," upheld the lower court rulings by a vote of 6 to 3, without any oral arguments or a full briefing on the issues. The court, obviously energized by a visceral dislike of Snepp's tactics, declared that "Without a dependable prepublication procedure, no intelligence agency or responsible government official could be assured that an employee privy to sensitive information might not conclude on his own--innocently or otherwise--that it should be disclosed to the world." The Snepp case had now been expanded, by court dicta, to all responsible government officials--not just those in the intelligence business.

In a unusually caustic column a few days later in The New York Times, Anthony Lewis noted that the judges clearly "disapproved" of Snepp and his means of avoiding CIA censorship. "[T]est cases for civil liberties do not always, or usually, involve agreeable fellows," Lewis wrote. When the government "acts against even the most unpopular or cantankerous person, it must follow the rules meticulously--or all our liberty is at risk. . . . Those beliefs have just been dealt a shattering blow by the Supreme Court . . . [M]oral disapproval of Mr. Snepp comes ill from a Court that in this case showed contempt for the rule of law."

Seventeen years later, Snepp writes, he made an extraordinary visit to the Supreme Court to search through the relevant private papers of the late Justice Thurgood Marshall and retired Justice Potter Stewart. He learned, as Anthony Lewis and other critics had surmised, that the court's decision against him was driven not by the law but by personal animus. The key player was Justice Lewis Powell, a former military intelligence officer who, as Snepp discovered, had rallied against dissenters in a confidential memorandum he wrote in 1971, the year before he was named to the court. The document, prepared for the U.S. Chamber of Commerce, called for a judicial crackdown on those activists who were criticizing the American political system. Powell specifically named Ralph Nader, the consumer activist, and Herbert Marcuse, a leading new leftist. "There should be no hesitation to attack the Naders, the Marcuses, and others openly seeking destruction of the system," Powell wrote. "Nor should there be reluctance to penalize politically those who oppose it." The judiciary, Powell added, was the instrument of choice.

The private Marshall-Brennan papers show that it was Powell who convinced his colleagues to accept the case on appeal from the 4th Circuit, and it was Powell's reasoning that led the court to order Snepp to turn over all of his profits to the Treasury. In one memorandum, Powell argued that Snepp had "willfully, deliberately and surreptitiously" violated a trust relationship in his dealings with the CIA and, in so doing, had harmed the U.S. government--even if no national security secrets were betrayed. "If former agents may rely on their own judgment about what information is harmful," Powell argued, "the intelligence services of friendly nations and the agents recruited by the CIA cannot be assured of the secrecy upon which their cooperation depends."

Powell, notes Snepp woefully, was "sounding more like a CIA flack than a judge. . . . To a man of these sensibilities, the Frank Snepp case must have seemed the payback opportunity of a lifetime."

To its credit, "Irreparable Harm" is not a payback book. Snepp is too sad and too battered to get much satisfaction from striking back. He describes what happened with admirable honesty, but it's not clear that he fully understands why so many people got so mad at him. He sees himself as the well-meaning reformer who, while professing nothing but pure thoughts, provoked others, even the justices of the Supreme Court, into reckless and uninformed actions.

In the end, the fact that Frank Snepp could be a pain doesn't matter. He took a courageous stand and suffered for it. Snepp, and the Constitution, deserved better.

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