The degree of discretion granted by S. 1400 to allow the executive branch to withhold information from the public has ominous first amendment ramifications. A fundamental guarantee of the first amendment is the public's right to know about the activities of its government. 80 In direct conflict with the public's right to know, however, is the government's need for secrecy in those areas involving protection of sensitive information from disclosure to unfriendly states, security measures to insure the flow of intelligence, and conduct of certain diplomatic business. 81 An extensive system of classification has been set up by the executive branch to prevent disclosure of such state secrets. 82 S. 1400 would sanction that system by punishing unauthorized disclosure and obtaining of classified information, whether or not that information was improperly classified. Thus, S. 1400 could be used to plug leaks of information that had been classified not in the interest of the nation as a whole, but to avoid injury or embarrassment to particular individuals or groups in the government

The justification for S. 1400 would be strong if there were no evidence that the classification system has been abused, that executive orders 83 have been strictly adhered to, and that the classification of Top Secret has been reserved for exceptional circumstances. 84 The case of the Pentagon Papers, however, casts doubt upon the traditional justification. The government's action to enjoin publication of the mainly Top Secret documents was reviewed by nineteen federal judges before reaching the Supreme Court. 85 Though the government was given every opportunity to demonstrate how the national security interest would be endangered by publication, not one judge wholly agreed with the government's claim.86 Twelve of them were completely unpersuaded that publication of the documents would gravely prejudice national defense interests or result in irreparable national injury; the other seven merely would have given the government another chance to make its showing on remand. In a per curiam opinion, the Supreme Court held that the government had not met the burden of showing justification for such restraint. 87 Injunctive relief against publication has traditionally been an area in which the government's burden of proof is extremely heavy.88 Nevertheless, the failure of the government to persuade the judges of the sensitive nature of the Top Secret documents in question well illustrates the point that the classification system has exceeded its bounds.

Regardless of whether abuse of the classification system has been in self-interest or as a result of massive bureaucracy, it is clear that excessive secrecy is a

89

80 See Meiklejohn, The First Amendment Is an Absolute, 1961 SUP. CT. REV. 245, 255–56. According to Meiklejohn, the first amendment for bids Congress to abridge the freedom of a citizen's speech, press, peaceable assembly, or petition, whenever those activities are utilized for the governing of the nation. The scope of the amendment, therefore, includes; (a) understanding issues facing the nation, (b) passing judgment on decisions our agents make upon those issues, and (c) sharing in devising methods by which those decisions can be made wise and effective or, if need be, supplemented by others which promise greater wisdom and effectiveness.

81 Developments in the Law, supra note 6, at 1190-92.

82 For a detailed review of the history of the classification system, see Security Classification as a Problem in the Congressional Role in Foreign Policy, in Hearings, supra note 17, pt. III at 3063-94.

83 For copies of basic documents on security classifications, see Id. at 3094-3144.

84 See Exec. Order 10,501, 3 C.F. R. 292, 293 (1971), 50 U.S.C. § 401 (1970), amending 3 C.F.R. 979 (1949-53 Comp.). The Top Secret classification is to be reserved for defense information of which the unauthorized disclosure;

Id.

could result in exceptionally grave damage to the Nation such as leading to a definite break in diplomatic relations affecting the defense of the United States, an armed attack against the United States or its allies, a war, or the compromise of military or defense plans, or intelligence operations, or scientific or technical development vital to the national defense.

85 United States v. New York Time Co., 328 F. Supp. 324 (S.D.N.Y.), 444 F.2d 544 (2d Cir. 1971): United States v. Washington Post Co., 446 F.2d 1322, 446 F.2d 1327 (D.C. Cir. 1971).

86 Statement of ACLU at 1459.

87 New York Times Co. v. United States, 403 U.S. 713 (1971).

8 Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).

89 See Developments in the Law, supra note 6, at 1199-1201. In the Department of Defense alone (one of thirty-four departments or agencies with original authority to classify),

803 oficials have original authority to classify documents Top Secret; 7,686 employees have original Secret classifying authority; and 31,048 have original Confidential authority. . . . A Department of Defense official estimated that Defense alone holds over twenty million classifled documents. In addition, the number of documents classifled Top Secret and Secret in the defense industry has been placed at 'something like 100 million.'

Id. (footnotes omitted).

problem.90 The question remains whether such a system should serve as the basis for legislation restricting first amendment rights of citizens to be informed about the activities of their government. Given the fundamental importance of those rights, and the abuses of the classification system, an alternative which protects the former and avoids the latter ought to replace the classifications of S.1400. One alternative would be provision for the defense of improper classification. The burden of proof, however, would fall upon the defendant, giving great advantages to the prosecution and perhaps entailing public disclosure of sensitive information as evidence in court. S. 1 follows a better course in eliminating "classification" as a criterion of the offense and replacing it with specifically defined categories of "national defense information" which may not be misused. In this way, S. 1 allows sensitive information to be protected, but refuses to give government withholding of nonsensitive information the sanction of law.91

In discussing the constitutional issues presented by the national security sections of the proposed federal criminal codes, this note has sought to demonstrate that S. 1 and S. 1400 tend to favor national security interests over freedom of expression and association. Although this tendency in various sections may restrict the exercise of civil liberties, the proposals are not necessarily invalid, because the determination of unconstitutionality entails "a subtle analysis that takes into account a variety of factors, including a balancing of competing interests and goals, those of the Government and those of the individual." 92 S. 1 and S. 1400 have succeeded for the most part in meeting current minimal constitutional standards by which existing laws have been upheld. Whether the proposals accurately reflect the needs of national security in restricting first amendment freedoms is, however, another question.

As might be expected, the bill expressing more concern for national security was submitted to Congress by an Administration which has experienced much difficulty in dealing with those who object to its national security policies. The sections in S. 1400 concerning intentional and reckless impairment of military activities, disclosure of classified information, paramilitary activities, 93 and registration of foreign agents, have no counterpart in S. 1. One might conclude that the Senate subcommittee does not believe that the threat to national security posed by possible violations of such sections outweights the possible restriction on civil liberties. This conclusion is supported by the consistently less restrictive position taken by the drafters of S. 1 in regard to advocacy of unlawful actions. Nevertheless, adoption of S. 1 as it stands would not meet the ideal of the first amendment.

Id.

90 Id. at 1201.

Former Assistant Attorney General Rehnquist, who served as chairman of a committee appointed by President Nixon to review the classification system, told a House subcommittee that virtually every member of his committee believed that there was a tendency in the Government to overclassify. And former Ambassador to the United Nationals Arthur Goldberg testifled:

I have read and prepared countless thousands of classifled documents. In my experience, 75 percent of these documents should never have been classifled in the first place; another 15 percent quickly outlived the need for secrecy; and only about 10 percent genuinely required restricted access over any significant period of time.

91 Although the basic approach of S. 1 appears to be acceptable, the categories of "national defense information" that are set up in lieu of reliance on the classification system may contain serious inadequacies in themselves. Two commentators have reached the conclusion that neither proposal is adequate:

No legislation can be adequate unless it recognizes that at least three problems must be treated independently: spies, government employees and ex-employees, and newspapers and the rest of us. Both the present espionage statutes and the proposals of S. 1 and S. 1400 are fatally defective in that they ignore the necessity of separate considerations of the distinct interests in each of these contexts. Edgar & Schmidt, supra note 73, at 1083-84.

92 United States v. Baranski, 484 F.2d at 569.

93 The paramilitary political activities section of S. 1400, § 1104 has no counterpart in existing law other than the current registration requirement for organizations engaged in civilian military activity, 18 U.S.C. § 2386 (1970). Nor does it have a counterpart in S. 1. There are, however, similar statutes in existence in many cther countries. See 1 WORKING PAPERS, supra note 65, at 437-39. Section 1104 applies to paramilitary activities conducted by an organization or group of ten or more persons which has as a purpose the taking over of, control of, or assumption of the function of, an agency of the government by force or threat of force. Paramilitary activities include acquisition, catching, use, or training in the use of weapons. The offense, therefore, subjtets otherwise legal activity to criminal sanctions if conducted in association with a group which has an unlawful purpose, regardless of whether that purpose is attempted or accomplished.

94 S. 1400, § 1127 describes the offense of failing to register as a person trained in a foreign espionage system a required by 50 U.S.C. §§ 851 and 854. S. 1400, § 1128 punishes failure to register as, or acting as, a foreign agent as required by the Foreign Agents Registration Act of 1938, as amended, 22 U S ̊C... §§ 611 et ven (1970). Both proposed sections raise the problems of self-incrimination.

To more closely approach that ideal, however, several changes might be made in the proposed bills:

(1) With regard to treason, either proposal would be acceptable. If the related S. 1 offense of "military activity against the United States" is to be adopted, however, it should be made clear that the word "facilitate" does not include trivial advocatory conduct.

(2) As for advocacy of armed insurrection, the S. 1 proposal is much preferred. It should be adopted, however, only after the addition of the word "imminent" in the intent requirement. Both proposals concerning conspiracy to advocate or incite armed insurrection should be eliminated.

(3) The subsections dealing with incitement to evasion of military service in S. 1400, and to mutiny, insubordination, or refusal to carry out a duty in both bills, ought to be carefully scrutinized. If they cannot be narrowed to exclude from coverage conduct such as that described in the examples, then they, too, should be eliminated.

(4) The term "war" should be defined for purposes of the code as that which is declared by Congress in accordance with article I, §8 of the Constitution.

(5) The section of S. 1400 which bases the offense on the fact that information has been classified should be eliminated or, at least, the defense of improper classification should be allowed.

A strong case can be made for the contention that these changes would not leave the national security unprotected. However, in light of the restraints imposed on civil liberties by the proposals as they now stand, the burden ought to be placed on the proponents of the bills to show the necessity for the more questionable aspects.

In analyzing three recent national security decisions, one commentator has concluded that the Burger Court is highly influenced by the presence or absence of congressional action in matters of national security.95 A similar observation on the importance of legislative action was made even two decades earlier by Professor Wechsler in a symposium on civil liberties:96

"The scope of that judicial review [of the competing values of individual freedom and social interests] may be limited by what is in effect a presumption of validity, or a deference to legislative judgment, at least where the legislation condemns specific doctrine or specifically described types of meetings.'

The importance of the policy choices reflected in the final code cannot, therefore, be overremphasized. Whether the balance is tipped in favor of the government or in favor of the individual rests, to a great extent, in the hands of the legislature.

RIOT LEGISLATION: A TALE OF TWO ERAS

The federal anti-riot statute 1 is no stranger to controversy. Enacted in response to the civil disorders of the 1960's,2 the law has survived several constitutional challenges. The statute received national attention when some members of the "Chicago Eight" were convicted of violating the statute in connection with the disturbances at the 1968 Democratic National Convention in Chicago. It is of public interest, then, that proposals for a new federal criminal code, sponsored by Senators McClellan and Hruska,' contain provisions which would replace the current law against inciting to riot.

95 Becker, The Supreme Court's Recent "National Security" Decisions: Which Interests Are Being Protected?, 40 TENN. L. REV. 1, 26-27 (1972).

96 Wechsler, Symposium on Civil Liberties, 9 A.L. SCH. REV. 881, 887 (1941).

1 18 U.S.C. § 2101 (1968).

2 See note 8 infra.

3 National Mobilization Comm. to End the War in Viet Nam v. Foaran, 411 F.2d 934 (7th Cir. 1969) (indefiniteness and vagueness); United States v. Hoffman, 334 F. Supp. 504 (D.D.C. 1971) (freedom of assembly, freedom of travel, due process of law and commerce power); In re Shead, 302 F. Supp. 560 (N.D. Cal. 1969), aff'd sub nom. 417 F.2d 384 (9th Cir. 1969), cert. denied, 399 U.S. 935 (1970) (overbreadth and vagueness). 4 The convictions were reversed on the ground of improper demeanor of the trial judge and prosecutor in United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), cert. denied, 410 U.S. 970 (1973).

5 The week of rioting in Chicago left 192 policemen and hundreds of demonstrators injured. There were 668 arrests and damage to police vehicles totaled $15,175.36. THE WALKER REPORT TO THE NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE, RIGHTS IN CONFLICT, 351-58 (1968).

6 S. 1, 93d Cong., 1st Sess. § 2-9B1 (1973) (hereinafter cited as S. 1].

7 S. 1400, 93d Cong., 1st Sess. § 1801 (1973) [hereinafter cited as S. 1400]. There are also anti-riot provisions in two bills recently introduced in the House of Representatives. H. R. 6046, 93d Cong., 1st Sess. § 1801 (1973), and H. R. 10047, 93d Cong., 1st Sess. § 1801 (1973) are identical in language to S. 1400 and to the THE NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS, FINAL REPORT § 1801 (1971), respectively.

The present and proposed laws are the products of different social and political climates. The current statute became law at the height of the turbulent 1960's.8 Hastily drafted for quick passage, the law was based on the premise that riots are caused by roving bands of agitators who escape across state lines before they can be apprehended by local authorities. The current statute is thus aimed at controlling this type of instigator. In contrast, S. 1 and S. 1400 were drafted in an era of relative calm. Racial strife has markedly subsided in recent years and the conclusion of the American involvement in the Vietnam war has brought a commensurate decrease in the anti-war protest activity that began in the latter half of the 1960's.10 Despite this change in climate, the proposals appear to adopt the same posture toward incitement to riot as the present law."1

The origin of the present law began with the introduction of a similar provision in the House of Representatives in 196612 amid charges that the Justice Department was unwilling to prosecute alleged interstate agitators. 13 The measure, passed overhwelmingly by the House, was defeated in the Senate.14 The bill which eventually became the present law was introduced in the House in early 1967.15 The haste with which the bill was pushed through the House is demonstrated by the fact that no hearings on the measure were conducted in the 90th Congress.16 The only hearings on the subject were held in connection with the 1966 bill, and those proceedings lasted less than three hours." By June 29, 1967, the House Judiciary Committee had reported favorably on the bill.18 The report stated that "[t]he Committee believes that the enactment of this legislation to deter and punish those who travel interstate to incite such violences is salutary." 19

On the House floor the bill was styled as a weapon against an alleged Communistinspired anarchy sweeping the country.20 Blame was placed on interstate agitators, and a white backlash was predicted if the legislation failed to pass.21 Congressman

Though there were only six riots in the United States in 1961, the number climbed to a dozen in 1963 and to 15 in 1964. After 1963, more than half the disturbances were racial in nature, including the riots that struck 38 cities in 1966. Between May 14, 1961, and June 22, 1967, approximately 50 persons were killed and about 2,000 injured in riots. There were 24 riots between September 27, 1966, and June 22, 1967. Property damage for the year 1964 alone totaled between $6.5 and $8.5 million. 113 CONG. REC. 19354-55 (1967). See text accompanying notes 20-24 infra. On the House floor Congressman Talcott stated:

Reports following each of the serious riots this summer have indicated conclusively that professional agitators, anarchists, hoodlums, ex-convicts, and their ilk, fomented most of the trouble in Chicago, Cleveland, Omaha, New York, and elsewhere.

112 CONG. REC. 19966 (1966).

10 Race-related civil disorders decreased from 724 in 1968 to 240 in 1971, and such disorders became progressively less serious over that time period. In 1967 the National Guard was needed in 12 per cent of the summer disorders, but by 1971 that percentage had dropped to 3. LEMBERG CENTER FOR THE STUDY OF VIOLENCE, BRANDEIS UNIVERSITY, THE LONG HOT SUMMER? AN ANALYSIS OF SUMMER DISORDERS 1967-1971 at 4, 12-13, 15-16 (1972).

The decline in racial violence can perhaps be traced to a new attitude on the part of blacks. For the most part, black neighborhoods bore the brunt of the rioting and, in the words of Rev. Ed Reddick, a black leader, "[t]here may have been an awareness that violence is self-defeating, that you have to work for political and economic power." TIME, Sept. 20, 1971, at 16.

Another example of the general decrease in violence is evidenced by the results of a questionnaire sent to 84 college presidents by U.S. NEWS & WORLD REPORT. The poll, which covered the 1971-1972 academic year, revealed that violence decreased or disappeared at 77 per cent of the schools. Eighty per cent of the presidents said students were "less radical" than in 1970 and most attributed this, and the decrease in viofence, to the lessening of the Vietnam involvement. A University of Kansas official observed that "[d]emonstrations here were orderly, with greater emphasis by student leaders on avoidance of physical damage or disruption of normal activities." Id.

A majority of the presidents also reported that race relations on campus had improved, and R. D. Monks of predominately black Wilberforce University noted that students there no longer talk "black power," but instead talk "brain power." U.S. NEWS & WORLD REPORT, June 19, 1972, at 28-33.

Id.

11 For a comparison of S. 1, S. 1400 and the present law, see text accompanying notes 34-61 infra.

12 H. R. 14765, 89th Cong., 2d Sess. (1966).

13 112 CONG. REC 19965 (1966). Congressman Whitten asserted:

This provision is a sound one. I hope the Senate will adopt it as separate legislation. Under the administration of the present Attorney General, however, I doubt that much would be done to enforce its provisions.

14 The anti-riot provision, an amendment to the Civil Rights Act of 1966, was passed, 389-25, in the House in a vote separate from that taken on the bill as a while. 112 CONG. REC. 18737 (1966). In the Senate, a motion for consideration of H. R. 14765 was the object of extended debate, and the bill was set aside after a cloture motion failed. 112 CONG. REC. 23042-43 (1966).

15 H.R. 421, 90th Cong., 1st Sess. (1967).

16 See 113 CONG. REC. 19349 (1967).

17 Id.

18 H.R. REP. No. 472, 90th Cong., 1st Sess. (1967).

19 Id. at 3. The report also observes that 70 similar proposals were introduced in the House during the session of the 90th Congress. Id. at 2. The three committee members who dissented argued that the federal government should not intervene in the area of riot control. Id. at 5.

20 113 CONG. REC. 19347-48 (1967). Congressman Colmer declared: [W]e are dealing here with an organized conspiracy

that is backed by, yes, the Communists who are working in this country and who have a big stake involved here. They are the people who have the most to gain in this kind of anarchy and unlawfulness.

Id. at 19348.

21 Id. at 19351-61. For a discussion of the politics of law and order, see T. WHITE, THE MAKING OP THE PRESIDENT 1968, at 188-223 (1969).

Sikes of Florida indicated the frame of mind of many legislators when he declared that "[t]hose who incide to violence should be punished whether or not freedom of speech is impaired." 22 The bill was passed by the House by a vote of 348 to 70.23 In the Senate the bill was referred to the Judiciary Committee, and Chairman Eastland noted that speeding the measure through the chamber was an important consideration: 24

"We have legislation before us which has been approved by the other body. We have a duty, and it will be our purpose to deal with this legislation as speedily as possible. We shall try to bring together in this record, as rapidly as we can, the information we need to act on this legislation in a responsible way."

The consequences of moving too fast with the legislation did not go unnoticed by some committee members, who observed that the provision had passed the House at the height of summer rioting.25 Senator Long of Missouri favored antiriot legislation, but cautioned that "we must not enact a measure today which will come back to haunt us in more normal times" 26

On the Senate floor the atmosphere of crisis and the desire for immediate action were widespread. It was argued that freedom from rioting constituted a cherished privilege,27 and Senator Thurmond of South Carolina, condemning outside agitators, declared that rioting "has created the most severe domestic crisis in the United States since 1860.'28 Drafting of amendments on the Senate floor was disorganized;29 Senator Javits of New York candidly admitted just before the voting that "I still cannot say that I understand the full thrust of the ."'30 The anti-riot provision, an amendment to the Civil Rights Bill of 1968, was passed by the Senate on March 11, 1968.31 The final product, 18 U.S.C. § 2101, reflects the haste by which it became law. A section dealing with organized labor appears to be unnecessary,32 and a provision pertaining to admission of evidence is unclear.33

matter

Id.

22 113 CONG. REC. 19351 (1967). Congressman Sikes also stated:

Freedom of speech is a zealously guarded right. But freedom of speech must not be allowed to immunize from punishment a person who incites others to maim or kill or riot. Freedom of speech does not guarantee the right to create disorder.

23 Id. at 19433.

24 Hearings on H.R. 421 Beofre the Senate Comm. on the Judiciary, 90th Cong., 1st Sess., pt. 1, at 5 (1967). 25 Id. at 13.

26 Id. Some Senators were so anxious to get an anti-riot law on the books that the provision was tacked onto the 1968 Civil Rights Bill and put to a vote before the full Senate before the Judiciary Committee had reported. 114 CONG. REC. 5209 (1968). Senator Thurmond, a strong supporter of the legislation, stated on the Senate floor "that although this is not just exactly what we want, it will give us a riot bill." Id. at 5212. Senator Scott responded:

While supporting the objective of the Thurmond amendment, I question the wisdom of the Senate on this sensitive matter at this time without the benefit of the recommendations of the Committee on the Judiciary. Rushing too hastily, and perhaps with ill-considered judgment, to adopt this amendment now, would be unwise and premature. Our committee deserves an opportunity to report a measure after due and adequate deliberation and consideration.

Id. at 5209.

27 Id. at 5206 (remarks of Senator Lausche). Senator Thurmond had stated at the committee hearings: Looting and arson are not mere property damage but they are the collapse of civil order. They are the collapse of civilized society. The police and the troops must be allowed to use the necessary force to restore order immediately.

Hearings on H.R. 421 Before the Senate Comm. on the Judiciary, 90th Cong., 1st Sess., pt. 1, at 19 (1968). 28 114 CONG. REC. 5203 (1968).

29 Id. at 5212.

30 Id. at 5214.

31 Id. at 5992.

32 18 U.S.C. § 2101 (1968) provides in pertinent part:

(e) Nothing contained in this section shall be construed to make it unlawful for any person to travel in, or use the facilities of, interstate or foreign commerce for the purpose of pursuing the legitimate objectives of organized labor, through orderly and lawful means.

It seems there is no need for a specific exemption for organized labor. No group or organization, labor or otherwise, using "orderly and lawful means" would be in violation of the statute.

33 18 U.S.C. § 2101 (1968) provides in pertinent part:

(b) In any prosecution under this section, proof that a defendant engaged or attempted to engage in one or more of the overt acts described . . . and (1) has traveled in interstate or foreign commerce, or (2) has use of or used any facility of interstate or foreign commerce... such travel or use shall be admissable proof to establish that such defendant traveled in or used such facility of interstate or foreign

commerce.

The provision appears to say that proof of travel or use is admissable to prove travel or use.