United States v. Snepp

• Citation: 456 F. Supp. 176
• Decision Date: 07 July 1978
• Docket Number: Civ. A. No. 78-92-A.
• Parties: UNITED STATES of America, Plaintiff, v. Frank W. SNEPP, III, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

456 F. Supp. 176

UNITED STATES of America, Plaintiff, v. Frank W. SNEPP, III, Defendant.

Civ. A. No. 78-92-A.

United States District Court, E. D. Virginia, Alexandria Division.

July 7, 1978.

Barbara Allen Babcock, Asst. Atty. Gen., Thomas S. Martin, Washington, D. C., William B. Cummings, U. S. Atty., Alexandria, Va., David J. Anderson, Washington, D. C., George P. Williams, Asst. U. S. Atty., Alexandria, Va., Elizabeth Gere Whitaker, Glenn V. Whitaker, Brook Hedge, Dept. of Justice, Washington, D. C., for plaintiff.

Mark H. Lynch, John H. F. Shattuck, American Civil Liberties Union, Washington, D. C., Bruce J. Ennis, Joel M. Gora, Jack D. Novik, American Civil Liberties Union, New York City, Alan M. Dershowitz, Cambridge, Mass., Geoffrey J. Vitt, Alexandria, Va., John Cary Sims, Washington, D. C., for defendant.

MEMORANDUM OPINION AND ORDER

OREN R. LEWIS, Senior District Judge.

In this case the United States does not seek to enjoin the publication of a book¹ but rather to redress through more commonly utilized remedies the defendant's breach of his contractual and fiduciary duties caused by his failure to submit to the CIA for its initial review all manuscripts which contain information gained by him as a result of his CIA employment.

The defendant admits he did not submit the said manuscripts to the Agency for pre-publication review — he says he was not under any legal obligations to so do because the secrecy agreement in question violates the First and Fifth Amendments to the United States Constitution.

He claims the United States lacks standing to bring this suit because it does not allege any harm to the national security or other cognizable interest of the United States.

He further claims the termination secrecy agreement he signed when he resigned from the CIA relieved him of his obligation to submit the said manuscripts for pre-publication review — and that even if the September 16, 1968 secrecy agreement were enforceable, CIA breached the agreement by failing to provide him an opportunity for a hearing on the evacuation of Vietnam.

He also claims the CIA is estopped from enforcing the secrecy agreement against him because it has permitted other employees to make unauthorized disclosures of information concerning the Agency, including information concerning intelligence sources and methods.

He claims the CIA fraudulently induced him to accept employment with the Agency and to sign the secrecy agreement.

He also claims duress — lack of consideration — mutuality of obligations — perpetuity — and that it is an unreasonable contract of adhesion and an unconscionable agreement.

He says he did not and does not owe any fiduciary duty to the CIA and that the Government has failed to mitigate its purported damages.

He prays that the suit be dismissed with prejudice and in the event the action goes to trial, he demands a trial by jury.

The Government's motion for an immediate judgment on the pleadings was denied pending completion of the record by both parties via discovery.

After completion of extensive discovery, the defendant filed a motion for summary judgment — that motion was heard and denied and the case was set for a formal pretrial hearing to identify what factual issues, if any, remained to be heard by the Court and/or the jury on June 20.

Based on the record thus made, the Court concluded that all the material facts were undisputed — whereupon, the jury panel was excused and the matter was heard and determined by the Court on the stipulations and the live and documentary evidence tendered by the parties in support of their respective positions.

The parties stipulated:

1. The Central Intelligence Agency, an agency of the United States, was established by the National Security Act of 1947. Under the provisions of the Act and implementing provisions of Executive Order 12036 and predecessor Executive Orders, the Agency is authorized to collect intelligence information relating to National Security and to correlate, evaluate, and disseminate within the United States Government, intelligence relating to National Security.

2. The position of the Director of Central Intelligence was established by the National Security Act of 1947. The Director serves as head of the Agency. Section 102(d)(3) of the Act, Title 50, United States Code, § 403(d)(3), charges the Director with responsibility for "protecting intelligence sources and methods from unauthorized disclosure."

3. On September 16, 1968, prior to the commencement of his official duties as an employee of the Central Intelligence Agency, defendant Frank W. Snepp III signed a secrecy agreement with the Agency. A true and correct copy of that agreement is attached to the complaint as Exhibit A.

4. Defendant Frank W. Snepp III was employed by the Central Intelligence Agency from September 16, 1968, until he resigned, effective January 23, 1976. During the period of his Agency employment, defendant Snepp served two tours of duty in South Vietnam. The dates on his tours of duty were from June 2, 1969 to June 21, 1971 and from October 4, 1972 to April 29, 1975.

5. During the course of his employment by the Central Intelligence Agency, defendant Frank W. Snepp III was assigned to various positions of trust, including two tours of duty in South Vietnam during the periods June 2, 1969 to June 21, 1971 and from October 4, 1972 to April 29, 1975, and was granted frequent access to classified information, including information regarding intelligence sources and methods.

6. Defendant Frank W. Snepp III submitted to Random House, Inc., for publication a non-fiction book entitled "Decent Interval". The book concerns the activities of the Central Intelligence Agency in South Vietnam and elsewhere, and it is based in large part on information obtained by defendant Snepp in the course of his Agency employment, including his tours of duty in South Vietnam during the periods June 2, 1969 to June 21, 1971 and from October 4, 1972 to April 29, 1975.

7. In November, 1977, Random House, Inc. published and placed in the stream of commerce for ultimate retail sale the nonfiction book by the defendant Frank W. Snepp III, entitled "Decent Interval".

Snepp admits in his answer and in his deposition that he did not submit his manuscripts relating to his book, "Decent Interval", to the CIA for pre-publication review.

The Court finds from the evidence thus received that Frank W. Snepp III was fully briefed and advised before entering on duty with the CIA that he was undertaking a position of trust in that Agency of the Government responsible to the President and the National Security Council for intelligence relating to the security of the United States of America;

That he understood that in the course of his employment he would acquire information about the CIA and its activities and about intelligence acquired or provided by the Agency;

That he knew that employment by the Government was a privilege — not a right;

That he had to sign a secrecy agreement upon entering on duty with the CIA;

That he read and fully understood the duties and responsibilities set forth in the said secrecy agreement; and

That he signed the said secrecy agreement on September 16, 1968 without any mental reservations or purpose of evasion.

Mr. Snepp knew — he was told by Admiral Turner, Associate Counsel and other CIA officials that he could not release his manuscripts on the evacuation of Vietnam for publication without prior Agency approval.

He knew this Court had enjoined Victor L. Marchetti, a former employee of the CIA, from publishing his proposed book in violation of his secrecy agreement.

Although he assured, or at least lead both Admiral Turner and Mr. Morrison of the CIA legal staff to believe that he would submit his manuscripts for Agency review before publication — the Court finds he had no intention of so doing because he was then making secret arrangements with Random House, Inc. to publish the book — all negotiations were conducted on park benches, in restaurants and/or in the public library. Snepp admits he did everything he could to keep the CIA from knowing about it prior to publication.

The Court finds from this evidence that Frank W. Snepp III willfully, deliberately and surreptitiously breached his position of trust with the CIA and the secrecy agreement dated September 16, 1968 by causing Random House, Inc. to publish "Decent Interval" (an insider's his account of Saigon's indecent end) without specific prior approval by the Central Intelligence Agency.

The Court further finds Mr. Snepp published the book "Decent Interval" for personal financial gain — he admits he has already received some sixty thousand dollars in advance payments and the contract with Random House, Inc. calls for royalties and other potential profits.

The undisputed evidence discloses that the CIA collects intelligence by two generic ways — one is through human sources who tell us information — we call that "sources" — the other is through technical means of collecting data, where a machine does it for you in one way or another — we call those "methods" of collecting intelligence.

Most of CIA's sources and methods are classified — if you disclose sources you are subjecting them to possible death, possible loss of position, possible loss of job — if you disclose your methods, you are making available to others the development of counter-methods to your methods, that would in effect make them useless.

The National Security Act of 1947 — amended 1969 — requires the Director of the CIA to prohibit intelligence sources and methods from unauthorized disclosure.

Both Admiral Turner and Mr. Colby testified, "In order to maintain your secrets you must have some form of control over unauthorized release."

When Admiral Turner was asked if there had been any adverse effect resulting from Snepp's refusal to submit his book for pre-publication review, he replied:

There clearly has. Over the

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