THE SUPREME COURT has Frank Snepp III all wrong. It must think of him as some sort of threat, a journalist of some sort, one of those awful types who try to find out the secrets of others by getting someone to spill the beans and break a confidence. This may be why Snepp got mauled by the courts in what lawyers call a summary judgment, but what Snepp, a former CIA agent, might call something else: termination with extreme prejudice.
Snepp joined the CIA in 1968 and spent part of his time in Vietnam. He was there at the end, and he wrote a book about it called "Decent Interval" in which he was critical of the CIA, blaming intelligence failures for the unseemly haste in which we departed that country. Snepp thought we should have been more methodical in exiting, going slower and making sure, in the process, that we took our friends with us.
Snepp believes, or believed, in the Vietnam war itself, that it was right -- a just cause. He thought the war would have been won and that we should have won it. Frank Snepp is no liberal. He is, instead, your classic spook, a little cold for my taste, a litte arrogant for some others, very conservative. Still, you have to like him.
The reason I like Snepp is that he wrote that book we just mentioned. I like people who write books and tell what they think they have to tell. I like information and I don't like efforts to curtail either the gathering of it or the publishing of it. This is a selfish obsession with most journalists; we should be excused if we think others should share it. Most people, I know, couldn't care less. Frank Snepp was probably one of those. He isn't anymore.
When Frank Snepp went into the CIA he signed an oath. Part of it promised that he would "not . . . publish . . . any information or material relating to the agency, its activities or intelligence activities generally, either during or after the terms of [his] employment . . . without specific approval of the agency." It doesn't take a lawyer to tell you what this oath means.
Snepp violated that oath. He wrote his book without first submitting it to the CIA for clearance. The agency promptly went to court even though it conceded Snepp revealed no secrets. It sued and the federal judge, a government type named Oren Lewis, bellowed from the bench that Snepp was guilty, no ifs-ands-First Amendments about it. He ordered Snepp to forfeit all his royalties and forbade him from publishing any other books about the CIA without first submitting them to the agency.
Snepp put his royalties in escrow and appealed. He won a mixed victory, and so both he and the government appealed to the Supreme Court, where the original verdict was reinstated. The court said that the CIA was right and Snepp was wrong and the money had to be forfeited. Snepp is the first writer in American history to reach the 100 percent tax bracket.
Snepp's case is a difficult one. He did sign that oath. In fact, he signed two. The second referred only to classified information and so Snepp said he did not feel constrained from writing his book. No matter. He did not do what he knew he had to do -- submit the book first to the agency for clearance. He did not do that, he said, because his book was going to be critical of the agency -- no secrets spilled, but some blood drawn.
There are a host of issues at stake here. Is it reasonable to hold someone forever to an oath signed under one set of circumstances when those circumstances have substantially changed? Is it reasonable and unfair to ask someone to submit for possible censorship of a book critical of an agency to that very same agency? Is it right to deprive someone of all his profits from a book when that book, had it been submitted to the CIA, would have been published anyway? (Remember, there are no secrets in the book.)
But more than that, can someone be required as a condition of employment to sign away his First Amendment rights? Can you, in fact, sign away these rights as if there were a footnote in the Constitution that says "does not apply to CIA?" Will Congress be allowed to ask staff members to sign these oaths, and can your boss ask you to do it, too? -- just to be on the safe side, you understand.
I have my answers to all these questions and they are, predictably enough, the sort you would expect in the inviolability of the First Amendment. I can image, though, that others would see things differently and that the signed oath in the Snepp case -- the breaking of that promise -- might bother them.
But what I couldn't imagine is how the trial court, and then later the Supreme Court, would treat the whole matter as a simple breach-of-contract case, ignoring the First Amendment issues and, in the case of the Supreme Court, asking for no oral arguments or briefs. It ruled in a summary fashion as if this were a landlord-tenant dispute or a quarrel between two parties that had nothing to do with the rest of us.
The case deserved better treatment than that. Its handling makes you think that the court got Snepp confused with someone else -- maybe, say, a clerk intent on writing about the Supreme Court itself or telling secrets to some journalist. What's wrong about this view is that Snepp told no secrets.
The outcome of the case is clear. The CIA won. The rest of us lost.