Cato Policy Analysis No. 37 May 8, 1984

Policy Analysis

Reagan, National Security, and the First Amendment:
Plugging Leaks by Shutting Off the Main

by Frederick W. Whatley

Frederick W. Whatley is an attorney with the Cleveland law firm of Walter, Haverfield, Buescher & Chockley. He is the author of "Case Comment: Snepp v. United States," Cleveland State Law Review 30 (1981).


Executive Summary

During the brutal winter of 1983-84, water pipes froze and burst in many houses. Leaks followed. A sensible way to repair such leaks is to fix the leaking pipes. An equally efficient, albeit drastic, way to stop the leaks would be to shut off the main water supply to each house.

Leaks of classified information or of unclassified information known only within the cloistered halls of government have been occurring for years. Much of this information has been useful to the citizenry. It has included cost overruns on Defense Department boondoggles, the revelations published as The Pentagon Papers, and exposure of the peccadilloes, large and small, of government agencies and government officials. However, some of the information leaked has been geniunely damaging to national security. Such information has ranged from the top secret plans of Defense Department weaponry to the names of covert agents of the Central Intelligence Agency (CIA).

How do we repair the dangerous leaks without shutting off the useful ones? Traditionally, government has taken a prudent and restrained course of action. For action to be considered, the Constitution and court decisions require that the existence of a leak be established and that the leak be shown to be extremely dangerous to the "house," threatening to undermine its foundation. Only after these requirements have been met may we very carefully remove the particular portion of leaking pipe, examine it closely, and repair it. In doing so, we must make sure that the repairs do not cause a blockage in our flow of information.

The Reagan administration, with the encouragement of the Supreme Court of the United States, has embarked on a different approach. The administration officials have driven up to the front of our house, put on their work clothes, gotten out of their truck (license plate NSDD 84), unearthed the valve to our main, and begun closing the valve. Clenched firmly in their hands and being used as the wrench to close the valve is the Supreme Court's decision in Snepp v. United States.

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