Opinion of the Court
Robert E. Quinn, Chief Judge:
The accused was convicted by general court-martial at Fort George G. Meade, Maryland, of five violations of the Uniform Code of Military Justice which grew out of certain of his writings regarding his experiences in Korea. A divided board of review set aside all of the findings of guilty except that relating to a single offense. However, it affirmed the sentence of dismissal and total forfeitures as appropriate for the finding affirmed. The dissenting member of the board voted to dismiss all findings of guilty. The Acting The Judge Advocate General certified to this Court a number of questions concerning the board of review's action, and we granted the accused's petition for review to consider other issues. For a proper perspective, preliminary consideration of the evidence is required.
In December 1951, the publishing firm of Simon and Schuster accepted for publication a manuscript written by the accused, who was then in Korea. A formal contract was entered into by the publishers and the accused's spouse, who acted under a power of attorney from him. The manuscript, bearing the title "This Is How It Was," but later published as "Korean Tales," consisted of two kinds of material, one fictional and the other factual. On instructions from the accused, Simon and Schuster mailed the factual chapters, on March 4, 1952, to the Office of Public Information, Department of the Army, "for review." Although addressed as indicated, the manuscript reached the Security Review Branch, Office of Public Information, Department of Defense. That branch sent it to the Office of Chief of Information, the reviewing authority for the Department of the Army. About a week later, a member of the staff turned over the manuscript to Brigadier General Dorn, Deputy Chief of Information, with the recommendation that he examine two of the chapters, one entitled "The Generals" and the other, "The Press." These chapters were admitted into evidence. Nothing appears in the record regarding the other factual chapters, except that one concerned the Air Force and that it was cleared for publication by that service.
After reading the critical chapters, General Dorn concluded that certain portions of the chapters violated "policy" and "propriety" requirements of Army Regulations 360-5. Among the portions to which specific objection was made by General Dorn was the following:
"Little did Hodes or the censors know that as he spoke a news story was being filed at the censors' office which, from the standpoint of Eighth Army, represented one of the most serious breaches of security to occur during the war — and that its source was none other than the United Nations' Supreme Commander, General of the Army Douglas MacArthur.
"When the 'pooled' press account of General MacArthur's revelations was laid on the censor's desk, the censor faced a dilemma. Here was a news story which should be suppressed for security reasons, even though it emanated from a general officer; yet it came from the one officer who possessed the undoubted authority to make any statement regarding military operations he chose. The censor passed the unembellished MacArthur statement as a direct quotation about 3 p. m.
". . . The next day, February 22, General MacArthur, from Tokyo, issued without warning his Communique No 802, which told the world Eighth Army was about to strike. The communique 'broke' Eighth Army's security news blackout after it had been in effect (without protest from newsmen, who well understood its efficacy) for 23⅛ hours. It was the first communique GHQ had issued since January 11, when GHQ had announced it would allow Eighth Army to be the sole source of ground combat information, and it was typically MacArthurian in phraseology, scope and grandiloquence.
"Be all that as it may, GHQ had telegraphed Eighth Army's punch.
"Heavy rains swept Korea now and four days later the offensive had bogged down. No one will ever know what portion of this temporary failure should be charged to inclement weather and how much to the disclosure of the army's intention."
On completing his examination, General Dorn gave the manuscript to Maj'or V. Pizer, Chief of the Book and Magazine Branch of his office, for further review. Thereafter, a series of letters passed between General Dorn and Simon and Schuster. General Dorn advised the publishers that the crucial chapters could "be edited and revised so as to be acceptable to the Army," although in so doing, the "manuscript might reach a point where . . . [they] would not wish to bring it out." He also indicated that the best way to accomplish the revision was to review the material with the accused, who was due to return to the United States.
No further activity of importance took place until April 1952. About the middle of that month, the accused's literary agent sent a carbon copy of "The Generals" chapter to Argosy Magazine. After acceptance of the manuscript, Argosy's Managing Editor received from Simon and Schuster a photostat of the original in which the accused had made a number of editorial corrections. The corrected chapter appeared as an article in the October 1952 issue of Argosy Magazine under the title, "The Generals' Private War."
After submission of "The Generals" chapter to Argosy Magazine, but before its publication, the accused actually met with General Dorn for consideration of revision of the text of the objectionable chapters. In late April or early May 1952, the accused appeared at General Dorn's office at the Pentagon and had two conferences with him and Major Pizer. These conferences were supplemented by three or four days of discussion of a "completely specific nature" between Major Pizer and the accused. While these discussions were going on, General Dorn wrote to Mr. Peter Schwed of Simon and Schuster, on May 1, 1952, advising him of the discussions. In his letter General Dorn said: "since security matters are scarcely involved in this manuscript, I feel that a satisfactory revision can be achieved."
At the end of the three or four-day period of talks, a number of open questions remained. The accused left the Pentagon, taking the whole manuscript with him. Major Pizer understood that he was going to prepare "a clean copy [of the critical chapters] which would incorporate all the changes agreed upon following which he would have submitted it for clearance." However, the manuscript was not returned, and the Office of Chief of Information, Department of Army, never regarded it as cleared. It appears that after the accused left Major Pizer, he went to the office of Simon and Schuster. There he talked with Mr. Schwed. He told him of his consultations at the Pentagon. He said, too, that he "could not go with all the things they requested of him." The accused had the manuscript and "the next day or so" remained in New York working on it. Eventually, he left the corrected manuscript with Mr. Schwed, and departed for his home on the West Coast.
Neither Simon and Schuster nor Argosy Magazine appear to have been specifically authorized by the accused to publish their respective manuscripts prior to accused's appearance at the Pentagon. The record is not clear as to when Argosy Magazine was authorized to proceed, but its publication arrangements were probably completed shortly after the accused made the changes in text in May 1952. In any event, on June 18, 1952, the accused wrote to the secretary of Argosy's Managing Editor expressing concern "over the proofs" of the article. He also stated that he "must be assured [they] were working from copy as finally edited by Simon and Schuster and himself." As for the book itself, Simon and Schuster went into preliminary production upon receipt of a letter from the accused dated June 20, 1952.
Enclosed with the June 20th letter to Simon and Schuster was a copy of a letter sent by the accused to the Office of Chief of Information, Department of Army. In the enclosure, the accused referred to his efforts to obtain a satisfactory revision of the manuscript and to his conviction that "individual personal reactions were the governing factors" in the official determination of "propriety." He said that he regretfully could not comply with "such restrictive interpretation," and that he had authorized Simon and Schuster to proceed with publication. He also stated his belief that the manuscript would reflect favorably upon the Army, because that end "was at all times one of the author's purposes."
Official reaction to the accused's letter to the Office of Chief of Information came in the form of a letter from General Dorn to the Commanding General, Sixth Army, the accused then being a member of that command. This letter, dated July 8, 1952, reviev/ed the submission of the manuscript for clearance, recited a number of alleged violations in the text of "policy" and "propriety" requirements of AR-360-5 and implementing directives, enclosed a copy of accused's letter of June 20 to Simon and Schuster, and concluded by referring the matter "for such action as . . . may [be] deem[ed] appropriate." The contents of this letter were duly brought to the attention of Lt. General Swing, the Commanding General of Sixth Army.
At General Swing's direction, a letter, dated July 11, 1952, addressed to the accused, and signed "by command of Lt. General Swing," was prepared. The letter reads as follows:
"1. The Commanding General has been informed that you have submitted a manuscript for intended publication to one or more publishers without obtaining prior Army clearance, in contravention of the provisions of paragraph 15, AR 360-5.
"2. You are hereby directed to withdraw immediately your manuscript from all publishers and to comply with the mentioned regulations by withholding it and all parts of it from publication until it has received clearance from the appropriate security review authority, which, in this case, is the office of the Chief of Information, Department of the Army.
"3. You will acknowledge receipt of this communication by indorsement through proper channels, and you will state therein the action taken by you to comply with this order.
BY COMMAND OF LIEUTENANT GENERAL SWING:"
On July 14, 1952, it was personally delivered to the accused. By endorsement, the accused acknowledged receipt and, in part, said:
"2. Respectfully advise I cannot comply with order.
"3. Desire to point out that manuscript in question was submitted to publisher while I was on duty in Korea, that I immediately wired and wrote him order to submit it to Department of the Army, that he complied at once, and that all complete chapters in question were in hands of Department of the Army not less than six weeks before publisher was permitted by me to proceed.
"4. Request permission to return to my home station to obtain pertinent correspondence and affidavits, in order to adequately prepare for any possible inquiry."
A week later in a letter to Mr. Schwed of Simon and Schuster, the accused said: "My battle with the Army now is joined in earnest. At headquarters Sixth Army I was ordered to recover the manuscript from you and halt publication. This, of course, I refused to do. Charges then were filed, with Dorn listed as witness against me. I told the Army I intended to fight all the way."
Two of the five charges upon which the accused, eventually, was brought to trial had, in fact, been prepared. The first alleged a willful disobedience of General Swing's command (Charge I), and the second charged a violation of paragraph 15, AR-360-5, in the submission of a manuscript to Simon and Schuster on June 15, 1952, without obtaining prior Army clearance (Charge II). Both charges were investigated and recommended for trial by general court-martial. However, General Swing referred the charges to The Adjutant General "in view of the fact that [he was] the nominal accuser in this case." By appropriate endorsement, the Commanding General, Second Army, was designated as the authority to exercise jurisdiction. Colonel Voorhees was then transferred to that Command.
Before further action was taken on the original charges, a third was added (Additional Charge). This charge resulted from the appearance of the October 1952 issue of Argosy Magazine containing "The Generals' Private War," which was "identical" with the corrected copy of the chapter, "The Generals." In substance, the specification of the charge alleged that the accused violated paragraph 15, AR-360-5, on June 20, 1952, by knowingly submitting a manuscript to the publishers of Argosy, without prior Army clearance. The three Charges were referred to trial on November 17, 1952, but be fore they came on for hearing, two more were appended.
In December 1952, the New York Journal-American, a New York City newspaper, planned a series of articles based upon the accused's book. To bring the material up to date, Mr. Guy Richards, who was in charge of the preparation of the series, urged the accused to "wind up his series with . . . a few expressions of opinion . . . about the solution of the so-called Korean problem." Acceding to the urgings, the accused wrote two articles. On December 15, 1952, at the insistence of Mr. Richards, these were mailed for clearance directly to the Security Review Branch, Department of Defense. The next day the accused mailed copies of the articles to Mr. Richards, with a note reminding him that clearance had to be obtained. No clearance on these articles was obtained and they were never published. Instead, Major General Parks, Chief of the Office of Information, Department of the Army, procured their return to accused for retransmission through regular Army channels. Additional Charge I and Additional Charge II were then filed against the accused. Additional Charge I alleges a violation of paragraph 15, AR-360-5, in that the accused submitted two articles to the publishers of the New York Journal-American, without obtaining prior Army clearance. Additional Charge II alleges that the accused wrongfully submitted the articles directly to the Department of Defense instead of through Army channels, in violation of Article 134, Uniform Code of Military Justice, 50 USC § 728.
A great deal of other evidence was presented at the trial; much of it is documentary. Included among the exhibits are a memorandum, dated June 7, 1949, by the Secretary of Defense, Louis Johnson, which is addressed to the secretaries of the services and relates to the review of manuscripts written by military personnel, and a memorandum dated December 5, 1950, from the President of the United States to the various heads of executive departments and agencies, which concerns public statements on foreign or military policy,of officials of the departments and agencies of the executive branch. The Johnson memorandum provided that:'
"The responsibility of public information officers, including the Office of Public Information of the National Military Establishment, for the review of manuscripts or other material submitted in accordance with Army, Navy, and Air Force regulations is limited to deletion of matter which is classified for security reasons.
"It is directed that all Army, Navy, and Air Force regulations, directives, letters and memoranda which are in conflict be changed to conform with these instructions."
President Truman's memorandum reads ¾ follows:
"In the light of the present critical international situation, and until further written notice from me, I wish that each one of you would take immediate steps to reduce the number of public speeches pertaining to foreign or military policy made by officials of the departments and agencies of the Executive Branch. This applies to officials in the field as well as those in Washington.
"No speech, press release, or other public statement concerning military policy should be released until it has received clearance from the Department of Defense.
"The purpose of this memorandum is not to curtail the flow of information to the American people, but rather to insure that the information made public is accurate and fully in accord with the policies of the United States Government."
Before his plea, at the end of the prosecution's case, and again at the close of his own case, the accused made various motions to dismiss all the charges. These were denied. The defense consisted primarily of oral and documentary evidence regarding the meaning and applicability of AR-360-5. Considerable evidence was also elicited on the proper procedure for review of manuscripts written by military per sonnel. The accused himself did not testify.
The accused was convicted of all five of the charges. On review, the board of review set aside all the findings of guilty except those relating to Additional Charge I which concerned the Journal-American articles. Thereupon, The Acting The Judge Advocate General certified a number of questions to this Court. Also, the accused petitioned for a grant of review and we granted the petition to a limited extent. For convenience, the certified questions and the petition issues are consolidated as follows:
(1) Whether the Army can constitutionally require a "propriety" and "conformance to policy" clearance, prior to submission of a manuscript by military personnel to a publisher; if it can, may it properly impose such requirements in view of the terms of the Johnson memorandum of June 7, 1949, and President Truman's memorandum of December 5, 1950.
(2) Does AR-360-5 establish such a requirement of clearance of manuscripts and impose a duty of compliance upon Army personnel?
(3) Was the order of Lt. General Swing (Charge I) a lawful order?
(4) Did redelivery by the accused of a portion of his manuscript to Simon and Schuster about June 1952, (Charge II), constitute a "submission" within the meaning of paragraph 15, AR-360-5?
All the issues are closely connected. Common to each is AR-360-5. Accordingly we focus our attention first on the legality of that regulation.
AR-360-5 is entitled "Public Information, General Policies." Under Section IV, Army personnel are encouraged to write for publication on topics of general interest concerning the Army, within the bounds of security and Department of Army policy. Ibid, paragraph 13a. Personnel engaged in public information work, as was the accused, are expressly authorized to "engage in private literary efforts of their own." Ibid, paragraph 136, A number of other provisions are of importance to the issues in this case, but of immediate significance is paragraph 15. Since a violation of that paragraph is alleged in four of the five charges against the accused, we set it out in full.
"15. Submission of material for reviews — a. Each individual subject to military law is responsible that disclosure by him to the public of material or information shall conform to applicable regulations on classified matters.
"6. Public information officers normally perform the duties of security review. This function is limited to the deletion of classified matter and review for accuracy, propriety, and conformance to policy. Specific violations of security directives, policies, or regulations will be brought to the attention of the person submitting material for review.
"c. Personnel of the Army Establishment are personally responsible for their writings and public statements. Personnel on active duty will submit their writings and public statements to the appropriate security review authority. Retired personnel and civilian personnel employed by the Army Establishment will submit their writings and public statements to the appropriate security review authority when the material concerns military subjects. In no instance should the material be submitted to a publisher prior to clearance. Civilian component personnel who have written material intended for public release which concerns military subjects should submit the material to appropriate security review authority when there is any doubt concerning its security or propriety.
"d. Commanders will not impose restrictions other than to prevent public disclosure of classified or erroneous information.
"e. Commanders of highly classified projects or agencies in which highly classified information is processed should require a security review of all material prepared by their subordinates for public release."
Plainly AR-360-5 imposes restrictions on the free expression of ideas by Army personnel. The question then is whether those limitations set out in the regulation constitute an illegal departure from the Constitutional prohibition on legislation "abridging the freedom of speech," which is contained in the First Amendment.
The right to free speech is not an indiscriminate right. Instead, it is qualified by the require- ments of reasonableness in relation to time, place, and circumstance. Schenck v. United States, 249 US 47, 63 L ed 470, 39 S Ct 247. Thus, there is no doubt that restraints which reasonably protect the national interest do not violate the Constitutional right of free speech. See Dennis v. United States, 341 US 494, 95 L ed 1137, 71 S Ct 857. With these principles for our frame of reference, we proceed to inquire into the legality of the regulation.
At the outset, we face the necessity of determining the scope of the restrictions included in the regulation. The Government contends that the limitations are three-fold: security, policy, and propriety. On the other hand the accused maintains, and the board of review has held, that the only restraint is that of conformance to the demands of security. Resolution of the conflict cannot come from a dogmatic preference for one or the other. We must interpret the regulation reasonably and realistically. And our path of approach is marked out in the Manual provision that, "A general order or regulation is lawful if not contrary to or forbidden by the Constitution, . an Act of Congress or the lawful order of a superior authority." Manual for Courts-Martial, United States, 1951, paragraph 171a. This statement is consistent with general law. Standard Oil of California v. Johnson, 316 US 481, 86 L ed 1611, 62 S Ct 1168; United States v. Rosato, 3 USCMA 143, 11 CMR 143. Consequently, our immediate concern in determining the scope of the regulation is whether it is contrary to the order of a superior authority. If it is, at least to the extent of the conflict, we need not go beyond that class of authority in determining the legality of the regulation.
Prior to enactment of the National Security Act of 1947, the Secretary of War was empowered to prescribe regulations for the government of the Army. Revised Statutes, § 158-161. Under the National Security Act, the Secretary of War was designated as Secretary of the Army, and the Department of the Army was expressly made subject to the "general direction, authority, and control" of the newly created Secretary of Defense. 5 USC § 201, et seq. That was the state of the law when Secretary of Defense Louis Johnson issued his June 7, 1949, memorandum to the service secretaries.
Later, Congress rearranged the military establishment by substituting the Department of Defense as a single Executive Department in the Cabinet in place of the several service departments. 5 USC § 171. This change did not alter the subordination of the Department of- the Army to the Secretary of Defense. Senate Report 366, 81st Congress, 1st Session (1949). On September 26, 1950, the then Secretary of Defense, General George C. Marshall, specifically continued in effect all previous memoranda and directives of the Secretary of Defense, to the extent that they remained unmodified by appropriate authority. From the record, briefs of counsel, and our own research, it appears that the Johnson memorandum was never rescinded or modified by a Secretary of Defense up to the time of the offenses herein.
No one contends that the Johnson memorandum is an unconstitutional abridgement of freedom of speech. Any such attack would certainly fail. Dennis v. United States, supra; Schenck v. United States, supra. Similarly, no attack is made on the memorandum as being contrary to any presidential directive at the time of its issuance. In the absence of a contrary showing, we must presume its legality, insofar as it may be affected by a Presidential order as "the order of a superior author ity." See: 5 USC § 171(b). However, the Government urges that a literal interpretation of the provision that review is limited "to determination of matter which is classified for security reasons" would be violative of the Articles of War and the current Uniform Code of Military Justice. According to the Government, the quoted phrase is intended to cover review of matter violative of law generally, in addition to matter classified for security. Such construction is contrary to the plain language of the memorandum. Nonetheless, the Government contends that a different interpretation would be unconscionable and illegal in that a reviewer who limited his review to classified security matters alone would subject himself to criminal liability under military law by failing to exercise preventive discipline. This argument overlooks the right of a reviewing officer to bring a violation of law to the attention of the appropriate authorities, and thereby meet all of his obligations for preventive discipline. Such action would be entirely consistent with the restriction on his right to delete matter from the manuscript. Therefore, we reject the Government's position, and we hold that the memorandum covers only matters which are classified for security reasons, and not those matters which may be generally violative of law. No other Congressional enactment having been suggested as possibly contrary to the memorandum, and since we are aware of none, we have no hesitancy in recognizing its validity in the statutory field.
Turning to the regulation, we consider first whether it conforms to the Johnson memorandum as the order of a superior authority. From the viewpoint of language, the regulation, if construed to include, review for policy and propriety, would clearly go beyond the memorandum. The latter provides for deletion of material only if it is classified for security reasons. However, AR-360-5 refers in critical paragraph 15d! to "the deletion of classified matters and review for accuracy, propriety, and conformance to policy." Unless we are to believe that the Secretary of the Army deliberately flouted the authority of his superior, the Secretary of Defense, we must seek some basis for reconciliation.
According to the testimony of Major General Parks, Chief of the Army's review office, the regulation was "not consonant with the policy instruction of the Secretary of Defense's Office at the time it was issued." General Parks had been directed by the Secretary of the Army to establish a branch to review "for propriety and facts," and while he did not know where the Secretary of the Army "obtained his authority . I would assume that he knew what he was doing." On the other hand, General Dorn's testimony intimates that, when his office drafted the regulation, consideration was given to the Presidential Directive of December 1950. Plainly, he was in error in this respect. The direction for preparation of the regulation came, according to General Parks, "shortly after" his return to the public information office in September 1949; also the regulation itself is dated October 20, 1950. However, we are not foreclosed by any of this testimony from making an independent examination of the question of conflict between the Johnson memorandum and the regulation. See: Burnet v. Chicago Portrait Co., 285 US 1, 76 L ed 587, 52 S Ct 275.
The memorandum was issued on June 7, 1949. Although in the form of a memorandum to the service secretaries, it was phrased in positive, mandatory language and we have no doubt that it was intended as an order. Shortly afterward, the Secretary of the Army, according to General Parks' testimony, directed the redrafting of the Army's regulation on review. Unfortunately, the record does not show, and we have -been unable to determine, the exact nature of those instructions. However, some help in interpreting the meaning of the two instruments may be obtained from a brief consideration of previous directives.
On March 17, 1949, the then Secretary of Defense, Mr. James Forrestal, published a memorandum addressed to the services which provided for the creation of an Office of Public Information in the Department of Defense. It also provided that specified public information activities of the military establishment would operate on a consolidated basis under the Director of Public Information, who was placed in charge of the Office of Public Information. Among the enumerated activities was "security review and clearance of manuscripts." The memorandum was implemented by Consolidation Directive No. 1, April 14, 1949. This directive established the Security Review Branch in the Office of Public Information, Department of Defense. The mission and the functions of that branch were set out as follows:
"2. The mission of Security Review Branch is to establish safeguards for the National Military Establishment against the release by persons under its jurisdiction of classified military information or other matter which, if disclosed, would jeopardize the national security or welfare,.and to facilitate the release of information which is in the public interest.
"3. The Departments of the National Military Establishment will submit to Security Review Branch all informational material originating within their jurisdiction which is subject to review as outlined below:
In the performance of its mission, Security Review Branch will:
a. Review for security, policy and propriety:
(1) Informational material of any nature, including material for use in press conference or interviews, and including books, magazine or newspaper articles, news releases, speeches, radio scripts, still and motion pictures, posters, drawings, maps, etc., from military sources, including individual military personnel, for public dissemination through any medium of public information.
(2) Informational material dealing with military matters prepared by retired military personnel for publication."
The purpose and language of the Consolidation Directive make it apparent that the words "policy and propriety" are not intended to have simply the dictionary meaning. Rather, they are limited examples of "other matter" which would jeopardize the national security or welfare. A different construction would obviously create a contradictory enlargement of the functions of the Security Review Branch, as it is set out in the preceding paragraph. We hardly think that the draftsman of the directive intended such conflict.
The Johnson memorandum, issued less than two months after Consolidation Directive No. 1, was obviously intended to limit the scope of the directive. It appears to us that Secretary Johnson sought to establish a clear-cut and easily applied basis of review. Under the Consolidation Directive, the determination of what matter would violate national welfare rested upon an uncertain formula which could be given varying constructions by each of the services. In fact, General Parks touched upon this factor, as applied to this ease, when he said, "This is a very complex subject, this business of review and security and it gets into personal opinions which makes it so hard." However, under the Johnson standard, objectionable matter could be readily established as a fact by a relatively simple comparison with security classification directives. Thus, the standard for review in each of the services would be uniform and easily applied.
Read together, the Johnson memorandum and Consolidation Directive No. 1 give significance to the in struction of the Secretary of the Army to General Parks, at the time of the Army's implementation of the directives on manuscript review. General Parks testified that he was directed to establish a branch to review "propriety and facts." This direction does not impress us as an attempt by the Secretary of the Army to enlarge upon or circumvent the Department of Defense orders. On the contrary, the use of language appearing in the directive and the reference to "facts," which is the basis of the Johnson standard, suggest that the Secretary of the Army was trying to formulate a directive which was consonant with that of the Secretary of Defense. An examination of AR-360-5, convinces us that he accomplished that purpose.
The entire emphasis of the Army regulation is on review for classified matter. At the very outset, the responsibility of the Army is stated as "ensuring that information . . . not of classified nature within the meaning of AR 380-5, is made available to the public." Paragraph 3a. Parenthetically, the cited regulation deals with the standards for, and types of classification of, material for security purposes. Coordination with other agencies for security is required. Paragraph 3 c. Army commanders are made responsible "for the security review" of material submitted for publication. Paragraph 5e. The duty imposed upon the public information officer is "to review for security." Paragraph 106 (3) (c). Personnel on active duty are required to submit their writings and public statements to "appropriate security review authority." Paragraph 15c. Finally, under the regulation, commanders may not impose any restriction on the publication of material other than "to prevent public disclosure of classified or other erroneous information." Paragraph 15cZ.
The only portion of the regulation which seems to go beyond security is that part which reads as follows: "Public information officers normally perform the duties of security review. This function is limited to the deletion of classified matter and review for accuracy, propriety, and conformance to policy. Specific violations of security directives, policies, or regulations will be brought to the attention of the person submitting material for review." Paragraph 15a. -Apparently, the words "propriety" and "policy" as used in the regulation are intended to have the same meaning given to them in the Consolidation Directive. Certainly, they appear as an identical description of the function of review by the Public Information Officer. This, circumstance suggests that they were taken bodily from the Directive. Accordingly, we see no reason to give them any meaning other than that which they had in the Consolidation Directive. Further support for this construction appears from examination of the internal composition of the regulation.
Under the regulation, public information is an important function of command. Paragraph 3. The commanding officer is specifically designated as the primary public information officer. Paragraph 10. Under it too, no commander may impose any restriction other than to prevent public disclosure of classified or erroneous information. It goes without saying that any prohibition applicable to a commander, in the exercise of his command function, is equally binding upon every member of his staff. Since the regulation expressly makes the public information officer a member of the commanding officer's staff, paragraph 106, it follows that he cannot review for any purpose forbidden to the commanding officer. This limitation finds specific expression in that portion of the regulation defining the functions of the public information officer. Thus, his reviewing power is expressly limited to "review for security." Paragraph 106(3). Further emphasis occurs in the first sentence of the crucial paragraph which provides that public information officers normally perform "the duty of security review." The second sentence would suddenly expand the scope of review if the words "and review for accuracy, propriety, and conformance to policy" are interpreted as relating to matters other than security. Such a construction would be entirely foreign to every part of the regulation that preceded it, and in direct conflict with the limitation imposed upon commanders. For these reasons alone, we would choose to look for a meaning in these words that can properly be connected with security, instead of treating them as separate and different subjects for review. In the light of the Johnson memorandum and the Consolidation Directive, only one construction seems reasonable and proper, namely, the words "accuracy, propriety, and conformance with policy" enter into the review process only as to matters which may affect the national security and welfare and which are covered by a security classification.
Our construction of AR-360-5 eliminates consideration of a number of dependent issues. First, we need not consider whether the Army may properly require a "propriety" and "conformance to policy" review since it did not purport to do so under AR-360-5. Second, we may put aside all issues relating to the meaning and effect of President Truman's Memorandum of December 5, 1950. Since that memorandum was not in effect at the promulgation of AR-360-5, it could not have influenced the drafting of the regulation. Without any amendatory action by the Arms', the original scope of the regulation remained unchanged. Third, we need not now decide whether clearance requirements for "propriety" and "conformance to policy," as distinct factors, would be constitutional. See District of Columbia v. Little, 339 US 1, 94 L ed 599, 70 S Ct 468; Addy Co. v. United States, 264 US 239, 68 L ed 658, 44 S Ct 300.
Having found that AR-360-5 does not, in fact, provide for a review on "policy" and "propriety," we may properly pass over the second consolidated issue which raises the question of whether the regulation imposes a duty on Army personnel to submit their writings for review on those points. However, in their respective briefs and on oral argument, the accused and the Government joined issue on the accused's claim that, irrespective of "policy" and "propriety" the regulation imposes no duty whatsoever in respect to the submission of manuscripts for review. This claim is outside the narrow scope of the certified questions and the limited issues on which we granted review. Nonetheless, it strikes at the validity of the findings of guilty of the single offense affirmed by the board of review. Under the circumstances, we think it appropriate to accept this enlargement of the question and pass on the accused's claim.
The board of review held that a duty was imposed upon military personnel to submit their writings to the Army for review before turning them over to a publisher. Accordingly, it affirmed the findings of guilty of Additional Charge I which related to the articles written for the New York Journal-American. The pertinent part of the regulation appears in paragraph 15c, and reads as follows:
"c. Personnel of the Army Establishment are personally responsible for their writings and public statements. Personnel on active duty will submit their writings and public statements to the appropriate security review authority. Retired personnel and civilian personnel employed by the Army Establishment will submit their writings and public statements to the appropriate security review authority when the material concerns military subjects. In no instance should the material be submitted to a publisher prior to clearance. Civilian component personnel who have written material intended for public release which concerns military subjects should submit the material to appropriate security review authority when there is any doubt concerning its security or propriety."
Accused's argument on this aspect of the ease may be divided into two categories :
(1) The regulation fails to meet the standards required for a criminal statute in that it is vague, equivocal, and uncertain.
(2) The requirements for submission are permissive rather than mandatory; hence, the accused had no duty to submit his articles for clearance.
In elaboration of the first category, accused sets out portions of the regulation, and asks a great many questions which purport to show such a lack of clarity and certainty. His principal attack centers on the phrase "the appropriate security review authority," which appears in paragraph 15c; and his principal claim is that the phrase is so ambiguous as to have no meaning. Support is sought in an alleged conflict between the testimony of General Parks and that of other witnesses who were experienced in review procedure. General Parks testified that the appropriate security review authority is an "Army headquarters or any public information headquarters." He also stated that the function of review was decentralized to Army commands, and only where there is "some doubt about the possibility of security" is the case referred to the Chief of Information. From the Office of the Chief of Information it goes to the Security Review Branch, Office of Public Information, Department of Defense, for final review and "stamping for clearance." A scrutiny of the record discloses no testimony by any other witness which describes a different procedure.
Five persons, other than General Parks, testified on some phase of the review procedure. Their testimony may briefly be summarized as follows: Lieutenant Colonel Missal, Jr., review officer in the Security Review Branch, stated that in March 1952, he received ten chapters of the accused's book from Simon and Schuster; he read the manuscript and forwarded it to the Army; he expected the manuscript to be returned by the Army, but it never was. Colonel Missal did not give any reason why he submitted the manuscript to the Army, but a probable explanation appears in the testimony of General Dorn. The General stated that, if a manuscript is sent directly to the Security Review Branch and "it is on an Army matter, normally they will refer it to us for our comments before they pass on the security." General Dorn also testified to the decentralization of review to major commands, and that an Army officer's manuscript is supposed to go through channels; after the Department of Defense completes the review, it normally returns the manuscript to the Army for transmission to the author; however, in a ease involving a publication deadline, Defense would forward the manuscript directly to the author. The testimony of the third witness, Major Vernon Pizer, Chief of the Magazine and Book Branch, Office of the Chief of Public Information, Department of Army, did not deal directly with review procedure as such, but in response to defense questioning on who could clear the manuscript, he said that the "simplest thing" for a writer to do was to go to "his public information officer"; if that officer was unable to provide a definitive answer, he could apply through channels to get "authoritative answers."
Substantially the same testimony came from two defense witnesses. Colonel J. S. Edgerton, Chief, Security Review Branch, Department of Defense, primarily testified to his own interpretation of the Army regulation in relation to the Johnson memorandum. In the course of his testimony, he stated that his office was the final review authority for security matters; the "standard procedure" was to submit manuscripts to the services for comment, but it was "an internal matter for the services" as to how material from military personnel would be forwarded to his office. Lieutenant Colonel Rathbun, Public Information Officer, Second Army, also testified for the defense. His testimony, like that of Colonel Edgerton, was mainly concerned with his construction and application of the regulation. He recounted instances in which he, as a public information officer, reviewed the writings of military personnel which were intended for publication; he conceded that his decisions could be overruled by "higher echelon of command." At least by clear implication, this testimony substantially conforms-with that of the other witnesses. And, quite clearly substantial agreement on the process of review exists among all of the witnesses.
While elimination of the claim of conflict in testimony does not serve to dispose of accused's assertion that the regulation generally is vague and uncertain, it does serve to establish that in practical operation the phrase "an appropriate review authority" has definiteness of meaning. From the testimony, it is apparent that the public information officer of a command is the appropriate review authority for the military personnel of that command. The language of the regulation conveys the same meaning.
The responsibility for insuring that no classified matter is made available to the public "extends to all echelons to include all individuals." Paragraph 3; paragraph 15a. As we have already noted, security review is an important function of command, and the commanding officer is designated as the primary public information officer of any activity or command of the Army. Paragraph 3; paragraph 10. These provisions are followed by the requirement of submission to the appropriate security review authority. The wording of these provisions and the sequence in which they appear, lead inexorably to the conclusion that the commanding officer, or his public information officer, if he has one, is the proper review authority. Consequently, we find no vagueness or uncertainty in this part of the regulation.
Disposition of this portion of the accused's claim of uncertainty disposes of a number of subsidiary contentions. Among these is a claim that the regulation does not grant a right of review to the Army. Such a duty of review is clearly imposed upon the Army by the regulation. Paragraph 3 provides: "The United States Army is responsible for ensuring that information concerning its objectives and activities, not of a classified nature . is made available to the public." The converse of this statement is equally clear: The Army has the responsibility of ensuring that matter of a classified nature is not disclosed. Review of manuscripts written by military personnel and intended for publication is patently the most feasible way of carrying out that responsibility. The thrust of the regulation is thus unmistakable. Every commander is responsible for the creation and maintenance of a review procedure that will discharge his responsibility for the protection of matter of a classified nature. Establishment of such a duty of review by the Secretary of Army is entirely legal from the standpoint of general law, Dennis v. United States, supra; Schenck v. United States, supra; and it is clearly commanded by Consolidation Directive No. 1 and the Johnson memorandum.
Other of the accused's contentions of uncertainty, relate to the meaning of the words "clearance" and "submitted" in the sentence, "In no instance should the material be submitted to a publisher prior to clearance." Paragraph 15c. This sentence is also the core of the accused's argument that the regulation imposes no mandatory duty on Army personnel to submit their writings for review.
The regulation as a whole clearly creates an obligation on the part of all military personnel to submit their writings and public .statements for security review. The duty appears as a necessary corollary to the duty of an Army commander to review such matter to insure against disclosure of classified material. Individual responsibility respecting disclosure is first mentioned in paragraph 3. It is reemphasized in paragraph 156 which expressly provides that personnel on active duty, which was the status of the accused, "will submit" their writings and public speeches to the appropriate security review authority.
Finding the existence of a legal obligation on the part of active duty personnel to submit their manuscripts for review is half of the answer. The remaining part is whether the duty extends to submission of the writing for clearance before it is turned over to a publisher. On that branch of the issue, the appellant emphasizes the change in wording between the two sentences in paragraph 15c, and relies upon the familiar principles of construction which normally require a mandatory construction for "will" and a permissive interpretation of "should."
We fully recognize the general principles of statutory construction urged upon us by the accused, but we do not reach the same conclusions. Rules of construction are mere aids ⅛ the ascertainment of the meaning of words, when the meaning is not readily apparent from a cursory reading of the whole text. In United States v. Merritt, 1 USCMA 56, 1 CMR 56, we held that the word "shall," although generally used in a mandatory sense, may be in terpreted as permissive. However, no part of a regulation should be construed so as to render a related portion inoperative or ineffectual. See: United States v. Lucas, 1 USCMA 19, 1 CMR 19. Moreover, when alternative interpretations are possible, the one selected should be that which gives effect to the purpose of the writings. United States v. Padilla, 1 USCMA 603, 5 CMR 31. Thus, even if we agree with accused's contention that "should" is normally construed as permissive, the use intended in the regulation is plainly mandatory.
The whole pattern of review set up in the regulation would be meaningless and ineffectual if classified material could be submitted to a publisher before clearance by a security review authority. No fertile imagination is required to conclude that any number of persons can learn of classified matter contained in any writing turned over to a publisher. Irrevocable and irreparable harm can come from disclosure of such material to a single unauthorized person. So, we experience no difficulty in concluding that the regulation creates a mandatory obligation. We hold that the regulation imposes a two-fold duty upon persons on active duty: (1) to submit a manuscript for review to appropriate security review authority, and (2) to obtain a clearance from that authority to the effect that the writing does not contain classified matter, before the material is turned over to a publisher. The kind of manuscript subject to the requirement is stated generally in paragraph 3 and specifically in paragraph 13a. Paragraph 3 provides as follows:
"3. General. — a. The United States Army is responsible for ensuring that information concerning its objectives and activities, not of a classified nature within the meaning of AR 380-5, is made available to the public."
Paragraph 13a reads as follows:
"13. General. — a. Within the bounds of security and Department of the Army policy, the writing of articles, books, and related material intended for publication, and the engaging in public and private discussions on appropriate occasions by military personnel, on topics of military and professional interest, or general interest concerning the Army, or in support of the military policy of the United States, or in the interest of the national defense, is authorized and desirable."
An alleged violation of these duties is set out in Charge II, the Additional Charge, and Additional Charge I. The findings of guilty on the first two of these charges were set aside by the board of review, but those on Additional Charge I were affirmed. That charge alleges, in substance, that the accused violated paragraph 15, AR-360-5, by knowingly submitting two articles to the New York Journal-American, without obtaining prior Army clearance. Photostatic copies of the articles were admitted into evidence. We have read them, and we cannot say that they do not touch upon matters of "general interest concerning the Army." Among several items in the first of these articles is the following statement, "In Eighth Army, through necessity and the exercise of common sense, the color barrier has all but crumbled. Perhaps the U. S. Army pointed the way when awhile back if [sic] reasoned simply: Ten percent of our population is colored; in time of military emergency we must have the willing service of so-large a segment of our people; we'll do what is obviously the right thing to do to retain that willing service." In the second, besides comments on unification as it applied to Eighth Army, there is a concise analysis of the Eighth Army from 1951 to the date of the article, December 1952.
It may well be that nothing in the articles violates any security directive, but determination of that is properly reserved for the appropriate review authority. Under the command of paragraph 15a, the writings had to be submitted to such authority for clearance before they could be submitted to a publisher. The court-martial and the board of review have found the accused guilty of violating this provision by submitting the December 1952 articles to the New York Journal-American before the writer obtained Army clearance.
The question of the sufficiency of the evidence is not before us; but even if it were, we would have to say that the record contains substantial evidence of guilt. Included in that evidence is testimony by the accused in a pretrial investigation by The Inspector General's Section, Second Army, in which he admitted his authorship of the articles and the mailing of them to the security review branch and to Mr. Richards. He also said that he did not deny "the technical aspects" of the "accusation" that he violated paragraph 15c by submitting the articles to the New York Journal-American without obtaining clearance. The violation may be only "technical," particularly since the writings seem not to contain any classified matter, but nonetheless the offense was committed. See: United States v. Grow, 3 USCMA 77, 11 CMR 77.
We turn now to the accused's attack on General Swing's order. That attack is two-pronged. First, he claims that the order deprived him of the privilege against self-incrimination; and his second contention is that the order violates the Johnson memorandum and AR-360-5. The first claim need not detain us long. The letter order which was delivered to the accused provided for acknowledgment of receipt by endorsement, and that the accused "state therein the action taken" to comply. This part of the letter does not appear in the specification alleging the violation' of General Swing's order. Consequently, we need not determine whether such a direction would contravene Article 31, 50 USC § 602. See: United States v. Rosato, supra; United States v. Eggers, 3 USCMA 191, 11 CMR 191. Suffice it to note that this part of the original order was plainly subordinate and separable from that part which was made the subject of the charge.
As it appears in the charge, General Swing's order imposes a two-fold duty upon the accused: (1) to withdraw his manuscript from the publishers, and (2) to comply with paragraph 15, AR-360-5, until he obtained clearance from the Office of the Chief of Information. On its face, the order is not "palpably illegal," since it clearly relates to a military duty. Manual for Courts-Martial, supra, paragraph 1695, page 321; United States v. Trani, 1 USCMA 293, 3 CMR 27. Military personnel may properly be controlled in their disposition of personal property, when such disposition is not protected by any constitutional provision or Congressional enactment and is contrary to the requirements of the service. See: United States v. Martin, 1 USCMA 674, 5 CMR 102. Thus, if the order is illegal, illegality must appear from the evidence.
To place the evidence in its proper setting, we pause briefly to note the strange absence of particularity in the order. Normally, an order of this kind would describe the writing to be withdrawn with such detail as to exclude any question as to the manuscript intended. Here, the only specificity is "a manuscript" and "your manuscript." Patently, the draftsman had in mind a specific writing, and he had no doubt that the accused would immediately know the manuscript intended. This peculiarity takes on significance when we consider the circumstances from which the order resulted.
General Swing testified that he issued the order on the basis of the letter from General Dorn informing him of the unsuccessful efforts to eliminate the "policy" and "propriety" objections to the text of the disputed chapters, "The Generals" and "The Press." A copy of the accused's letter to Simon and Schuster authorizing them to proceed with publication was enclosed with General Dorn's letter. Plainly then, General Swing's order, referred to these chapters, and it was intended that they be withdrawn for the purpose of submitting them to a review for "policy" and "propriety." It is equally clear that it was so understood by all the parties. However, under paragraph 15d, a commander may not impose restrictions other than to prevent "public disclosure of classified or erroneous information." Inasmuch as the order was intended to impose other restrie- tions, it was illegal. But, even if we regard the order as intended to ensure a security review alone, the final result attained by the board of review would not be different.
General Dorn wrote to Simon and Schuster on May 1, 1952, and advised them that security was "scarcely involved." Additionally, his testimony indicates clearly that the Army's objections to the critical chapters were based solely on policy and propriety. The board of review concluded from this, and other evidence, that the accused had, in fact, received security clearance from the Office of the Chief of Information. We cannot say that this finding is not supported by substantial evidence. Consequently, the record shows a situation in which the accused had obtained the required clearance prior to the order. It might be argued that since the accused did not actually withdraw the manuscript from the publishers, he violated at least that part of General Swing's order. However, withdrawal under then existing circumstances would have had as its purpose an act which had already been' accomplished. Unquestionably such a useless purpose was not intended by General Swing. In the light of the background of the order, the first part is evidently dependent upon the second. Satisfaction of the latter would constitute a satisfaction of the former. Accordingly, we do not regard the action of the board of review in setting aside the finding of guilty of Charge I as being incorrect in law and unsupported by the record.
The Government would enlarge the scope of General Swing's order, and construe it as an effort to prevent the accused from violating the Uniform Code of Military Justice. Stress is laid, for example, on the alleged use of disrespectful language directed against General Douglas MacArthur which would be a violation of Article 89, 50 USC § 683. However, such extension of the order is precluded by its language and the circumstances from which it resulted. Therefore, we .are not required to consider what might be the result if General Swing's order had, in fact, been directed to the purpose now asserted by the Government.
We now reach the final question certified by The Judge Advocate General. The issue, in the language of the question, is, "Did redelivery by the accused of a portion of his manuscript to Simon and Schuster about June 1952, (Charge II), constitute a 'submission' within the •meaning of Paragraph 15, AR-360-5?" The board of review held that the findings of guilty of Charge II were incorrect in law and fact. In its opinion, it acknowledged, but chose to ignore, the difference in the Government's position at the trial and its appellate stand before the board of review.
At the trial, the prosecution argued that-the alleged submission occurred on or about June 15, 1952. On appeal before the board of review, the Government was equally firm in contending that the delivery of the manuscript was in December 1951. In this Court, the Government has taken a third position.' It now contends that the delivery of the manuscript in December 1951 constituted a submission, but that later the accused withdrew the manuscript and again submitted it on May 8,1952. The difficulty with the Government's present position is that the board of review determined, as a fact, that the clearance required by the regulation had been obtained prior to any activity of the accused in May and June 1952. The board of review had the right and the duty to reweigh the evidence. The record contains substantial evidence to support its finding, and we cannot set aside that finding because we might take a different view. The evidence does not demarcate, as a matter of law, the acts of the accused in December and those in May and June; it reasonably supports a factual determination that all of the accused's activities were essentially part of a single transaction. Consequently, we cannot hold, as a matter of law, that the redelivery of the critical chapters to Simon and Schuster constituted a separate submission in or about June 1952.
In view of what is said in the other opinions in this case, I think I should make it clear that, in my opinion, every individual in the military service is entitled to the same constitutional rights, privileges, and guarantees as every other American citizen, except where specifically denied or limited by the Constitution itself. See my dissent-_i ing opinion in United States v. Sutton, 3 USCMA 220, 11 CMR 220. But there are differences between the civilian and the military communities. In the military sphere, punishment for violation of law is not always an adequate protection against an abuse of a Constitutional privilege; then prevention rather than punishment becomes imperative. The line of reasoning delineated in cases like Near v. Minnesota ex rel Olson, 283 US 697, cited approvingly by Judge Brosman in his dissent, is workable, and perhaps even highly desirable, in the civilian community. However, it hardly serves a useful purpose, in the instant case, where one false move could be extremely dangerous, and one false word could be disastrous, or even fatal. Prevention rather than punishment becomes necessary to protect and preserve the lifeline of the republic in the theatre of military operations. It is that problem which confronts us here. And it is that difference which makes it reasonable to impose security measures on publication and disclosure to unauthorized persons, rather than t.o rely upon punishment for a consummated abuse of a Constitutional privilege.
The board of review in affirming its finding of guilty determined that the sentence was appropriate for the offense. However, a sentence to dismissal and total forfeitures for what is essentially only a "technical" violation of a regulation is exceedingly severe. Cf. United States v. Grow, supra. I need not decide how far the board of review can legally mitigate dismissal to some other punishment. See Manual for Courts-Martial, United States, 1951, paragraph 126i, page 212; Mullan v. United States, 212 US 516, 53 L ed 632, 29 S Ct 313. Suffice it that the board of review seems either not to have been aware of the full extent of its powers or, as Judge Latimer suggests, it believed that it could not approve any lesser sentence. We all agree that further action should be taken with regard to the sentence. We further agree that, in view of the dismissal of all the major charges, the interests of justice will best be served by permitting a primary rather than a "secondary and derivative" redetermination of the sentence. See United States v. Brasher, 2 USCMA 50, 6 CMR 50.
For the foregoing reasons, the decision of the board of review is reversed and a rehearing is ordered on Additional Charge I.