IRREPARABLE HARM: A FIRSTHAND ACCOUNT OF HOW ONE AGENT TOOK ON THE CIA IN AN EPIC BATTLE OVER FREE SPEECH by Frank Snepp. Lawrence: University Press of Kansas, 2001. 416 pp. Paper $19.95. ISBN 0-7006-1091-X.

Reviewed by Steven Puro, Department of Political Science, St. Louis University.

A key question in American society is the extent citizens can criticize government and its officials. In a legal context a similar question is how does the First Amendment to the United States Constitution protect citizens against government restraints of such criticism? Frank Snepp provides a firsthand autobiographical account of his battles with the American legal system to protect First Amendment rights concerning his book, DECENT INTERVAL (1977). This book criticized Central Intelligence agency (CIA) interpretation of events and activities leading to American withdrawal from Vietnam and Saigon in 1975. Snepp spent eight years in the CIA, five of them in Vietnam as interrogator, agent debriefed, and chief CIA strategy analyst in the Saigon Embassy. He is currently an investigative reporter and producer for cable television. His legal disputes with the CIA concerning government officials and government employees publication of information critical of government actions led to a U. S. Supreme Court per curium decision in SNEPP v. U. S. (1980). This decision substantially limited First Amendment protection for government officials' publication of material critical of government actions.

IRREPARABLE HARM extensively portrays legal and bureaucratic limitations placed in his path during the writing of DECENT INTERVAL. The later book demonstrates missteps and miscalculation in U. S. Vietnam policy. He shows incompetence among low and high-ranking foreign policy operatives in both Saigon and Washington. Snepp blames American leaders, such as Secretary of State Henry Kissinger, U. S. Ambassador to Vietnam Graham Martin, and CIA Station Chief Tom Polgar, for purposely misleading American public opinion about Vietnam. Snepp deemed many of the American leaders' actions immoral in abandoning Vietnamese whose supported and defended American interests. His stated goal in DECENT INTERVAL was to criticize these intelligence policies and security operations to avoid repetition of intelligence mistakes during Vietnam.

In the current book, Snepp believes there was discriminatory enforcement of CIA rules against him because he was not willing to accept implicit Agency norms about prepublication review. Anthony Lewis in the foreword says (p. x) "Snepp loyally tried to get the CIA to examine its own and other official failings". Snepp contends that loyalty to the Agency and its prepublication norms was maintained until the Agency refused to open itself to internal criticism. He questions whether Agency restrictions on his use of unclassified information or CIA secrecy agreements were reasonable or at worst constituted a prior-restraint under the First Amendment. In the late 1970s, Congress had not passed broad secrecy legislation. A key legal question in SNEPP v. U. S. was whether courts could impose prior restraint based on secrecy agreements without explicit congressional authorization.

IRREPARABLE HARM is filled with Snepp's personal views of many aspects of the legal process including U. S. government attorneys, his own attorneys, federal judges and the U. S. Justice Department's muddled theories of contract and fiduciary duty. Snepp complains about inconsistencies in the law and federal judges and U. S. Department of Justice lawyers' willingness to defer to CIA demands for censorship despite the absence of law or administrative rulings supporting those demands. He points to many CIA misinterpretations of law and regulations. In the late 1970s, during the beginning of this case, the CIA was under substantial executive and congressional scrutiny to fundamentally reform its intelligence operations. CIA official's main goal was to defend its institutional legitimacy and the Snepp case was a means to defend the organization.

Snepp portrays his case as a fight for First Amendment freedom of expression and the right of government employees to criticize government actions. His attorneys fought on First Amendment grounds that the government may not establish" a system of prior restraint with respect to unclassified information which has already been made public by the United States" (p. 257). The U. S. Government used a combination of contract law and fiduciary relationships. It argued that Snepp violated his contract and secrecy agreement with the CIA and he had been" a fiduciary or trustee of the government by virtue of having been exposed to sensitive information" (p. 226). They requested a common law grant of equitable relief, a constructive trust that would impound Snepp's royalties; i.e., in the government's view the royalties were ill-gotten gain from DECENT INTERVAL.

Public policy issues raised by this dispute include to what extent can former government employees write about their knowledge of unclassified and classified information; and, what are permitted relationships between employees and government concerning public knowledge of government actions, e.g., federal whistleblower statutes. American society has gained substantial insights into government operations from memoirs of former high-ranking government officials, e.g., Robert McNamara, Kissinger, Richard Nixon, and William Colby. First Amendment and societal concerns focus upon government's power to limit political speech, especially dissenting views.

In a 6-3 per curium decision, the U. S. Supreme Court (SNEPP v. U. S. 1980) decided for the U. S. government's remedy of a lifetime injunction requiring CIA approval of Snepp's publications related to intelligence work and a constructive trust upon his royalties and future gains from DECENT INTERVAL. The Snepp decision sharply contrasts with the Court's earlier ruling in PENTAGON PAPERS CASE (1971). Snepp examines both Justice Brennan and Justice Marshall's Supreme Court papers to demonstrate internal Court decision making in his case. Special attention is given to interactions between Justices Powell and Stevens. Snepp shows how both sides' legal arguments in SNEPP v. U. S. had consequences for cases in the subsequent Reagan and George H. W. Bush administrations when government sought to both limit government employees and contractor's political speech and act against press publication of unclassified information.

IRREPARABLE HARM is a well written narrative of Frank Snepp's encounter with administrative rules and U. S. Courts. It informs the general public and citizens concerned with constitutional rights about political and legal difficulties in defending First Amendment rights to criticize government actions. Undergraduates will be interested in legal difficulties faced by government employees who oppose government policies.

REFERENCE:

Snepp, Frank. 1977. DECENT INTERVAL AN INSIDER'S ACCOUNT OF SAIGON'S INDECENT END TOLD BY THE CIA'S CHIEF STRATEGY ANALYST IN VIETNAM, FRANK SNEPP. New York: Random House.

CASE REFERENCES:

NEW YORK TIMES v. UNITED STATES (PENTAGON PAPERS CASE), 403 U.S. 713 (1971).

SNEPP v. UNITED STATES, 444 U.S. 507 (1980).

*****************************************************************************

Copyright 2001 by the author, Steven Puro.