During the week of June 11 to June 17, 1977, Los Angeles Times correspondent Robert C. Toth was detained and questioned in Moscow by Soviet authorities concerning his alleged collection of secret information. During these interrogations of approximately three hours each on June 11, 13 and 14 and of six hours on June 15, protests were lodged by the White House, the Department of State, and the U.S. Senate. On June 17 he was informed that he could depart. Upon his release Mr. Toth indicated that a primary purpose of the interrogations was to investigate the activities of a Soviet citizen named Anatoly Shcharansky.

Prior to June 1977, Mr. Shcharansky, a spokesperson for the Jewish emigration movement who had been refused permission to emigrate, phoned Mr. Toth to inquire if Mr. Toth wished to meet with a parapsychologist. This inquiry eventually led to three meetings with Mr. Valeriy Georgiyevich Petukhov, who delivered an allegedly secret article to Mr. Toth on parapsychology on June 11, 1977, when both Mr. Toth and Mr. Petukhov were arrested.

On or about June 1, 1977, Mr. Shcharansky had been reported in Moscow as having been charged with treason. On June 2, 1977, Mr. John H. Trattner, Director of the Office of Press Relations of the Department of State, made the following statement, in relevant part, concerning Mr. Shcharansky:

[W]e have... seen those stories and reports and are deeply concerned at what is reported . . . to be happening.

Mr. Shcharansky is well known and respected in the United States for his efforts on behalf of human rights.

We have raised our concern with the Soviets . . . through diplomatic channels.

Dept. of State News Briefing, DPC 100, June 2, 1977.

On June 13, President Carter responded during a press conference to a question concerning the request by Mrs. Shcharansky for a personal interview while she was visiting in the United States:

I don't have any plans to meet Mrs. Shcharansky. But I have inquired deeply within the State Department and within the CIA as to whether or not Mr. Shcharansky has ever had any known relationship, in a subversive way or otherwise, with the CIA. The answer is no. We've double-checked this and I have been hesitant to make that public announcement, but now I'm completely convinced that contrary to the allegations that have been reported in the press that Mr. Shcharansky has never had any sort of relationship, to our knowledge, with the CIA.

13 Weekly Comp. of Pres. Doc. 880 (June 20, 1977).

On June 13, 1977, Hodding Carter III, Assistant Secretary of State for Public Affairs, responded to a question concerning Mr. Toth as follows:

We are protesting the detention [of Mr. Toth] to the Soviet Government.

[W]e do deplore this action by the Soviet authorities.

In recent months the Soviet Government has repeatedly made false charges in the Soviet press that various American correspondents have been involved in subversive activities. We see the detention of Toth on Saturday as a continuation of this campaign to discredit and harass American correspondents and inhibit their contacts with Soviet citizens.

Dept. of State News Briefing, DPC 107, June 13, 1977. On June 14, 1977, Mr. Toth was called to the U.S. Embassy where he was presented a note which the American Embassy had received from the Soviet Ministry of Foreign Affairs: The Ministry of Foreign Affairs is authorized to state the following to the American embassy:

Competent organs have at their disposal information that the correspondent of the newspaper Los Angeles Times accredited to the Soviet Union, the American citizen Robert Charles Toth, during a specific period of time has been engaged in activities incompatible with the status of a foreign journalist accredited to the U.S.S.R., that is, with collection of secret information of a political and military character.

On the 11th of June of this year Robert Charles Toth was apprehended at the moment of meeting with a Soviet citizen, Petukhov, Valeriy Georgiyevich, which took place under suspicious circumstances. When apprehended the American journalist was found to have materials given him by Petukhov containing secret data. The Ministry of Foreign Affairs states its protest in connection with the impermissible activity of the American correspondent Robert Toth consisting of the collection of information of a secret character and expects that the American side will take necessary measures for the prevention in the future of similar actions on the part of American correspondents accredited to the Soviet Union.

At the same time the Ministry of Foreign Affairs informs the American embassy in Moscow that in conformity with established procedure, Toth will be summoned for interrogation by the investigatory organs, in connection with which his departure from Moscow until the end of the investigation is not desired.

The Washington Post, June 19, 1977, p. 21.

On June 14, 1977, White House Press Secretary Jody Powell in response to a question commented on the question of Mr. Toth:

We have . . . formally protested this through the United States Embassy. The President is aware of it. He is quite concerned about it.

I think the protest makes our feelings clear, and I can give you verbatim from that statement in which we say, "This act introduced

a new and even more disturbing element into what seems to be a persistent effort by Soviet authorities to harass and intimidate American correspondents in the exercise of their profession. Such actions cannot be considered in the best interests of normal U.S.-U.S.S.R. relations. Their impact on public opinion in the United States will clearly not be favorable to the Soviet Union."

I might add we also state that, "Furthermore, the Embassy considers the action against Mr. Toth to be inconsistent with commitments undertaken by the Soviet Government, through its signature, to the Final Act of the Conference on Security and Cooperation in Europe, which calls for participating states to increase opportunities for journalists to communicate directly with their sources and reaffirm that legitimate pursuit of their professional activity will not penalize journalists."

White House News Conference No. 99, June 14, 1977.

At a Dept. of State news briefing also given on June 14, Mr. Trattner responded to a question as to whether Mr. Toth was permitted to have a consular officer with him while he was being questioned:

A consular officer did accompany Mr. Toth to a meeting today with the Soviet authorities, and it was requested by us that this consular officer be allowed to be present for the interrogation, but that request was denied by the Soviet authorities.

Dept. of State News Briefing, DPC 108, June 14, 1977.

Art. 12 of the Consular Convention and Protocol between the United States and the Union of Soviet Socialist Republics, which entered into force on July 13, 1968 [19 UST 5018; TIAS 6503; 655 UNTS 213], reads as follows:

1. A consular officer shall have the right within his district to meet with, communicate with, assist, and advise any national of the sending state and, where necessary, arrange for legal assistance for him. The receiving state shall in no way restrict the access of nationals of the sending state to its consular establishments.

2. The appropriate authorities of the receiving state shall immediately inform a consular officer of the sending state about the arrest or detention in other form of a national of the sending state.

3. A consular officer of the sending state shall have the right without delay to visit and communicate with a national of the sending state who is under arrest or otherwise detained in custody or is serving a sentence of imprisonment. The rights referred to in this paragraph shall be exercised in conformity with the laws and regulations of the receiving state, subject to the proviso, however, that the said laws and regulations must not nullify these rights.

On June 15, 1977, Mr. Toth was told that an American consul had not been permitted to be present during the questions because he was being "interrogated as a witness, not [as] an accused person."

On June 15, 1977, the U.S. Senate agreed to Senate Resolution 194 expressing concern about the Soviet detention and interrogation of Mr. Toth. The text of this resolution, which was introduced by Senator Claiborne Pell, follows:

Whereas the Soviet Union recently detained Robert C. Toth, an accredited United States reporter completing a three-year assignment in Moscow;

Whereas the Soviet Union has rejected an official United States protest and has refused Mr. Toth permission to leave the Soviet Union; and

Whereas both of these actions are a gross violation of the Helsinki Final Act which states clearly that "the participating states reaffirm that the legitimate pursuit of their professional activity will neither render journalists liable to expulsion nor otherwise penalize them": Now, therefore, be it

Resolved, that it is the sense of the Senate that:

(1) The Government of the United States should continue to press for a complete accounting from the Soviet Government of the circumstances which precipitated the detention of Robert C. Toth; and (2) Every appropriate means should be taken to obtain the safe return of Mr. Toth to the United States; and

(3) The Secretary of the Senate is hereby directed to provide a copy of this resolution to the President for transmittal to appropriate officials of the Soviet Union.

123 Cong. Rec. S 9884 (daily ed. June 15, 1977).

Freedom of Information Act

On August 16, 1977, the U.S. Court of Appeals for the District of Columbia held in Halperin v. Department of State (D.C. Civil Action No. 75-0674) that the Department of State had not taken into account procedural and substantive criteria established by the Freedom of Information Act and the relevant Executive order in deciding to classify and withhold from appellee portions of the transcript of a so-called "background" press conference held by former Secretary of State Henry Kissinger on December 3, 1974. However, the court of appeals, speaking through an opinion by Circuit Judge Carl McGowan, remanded the record to the district court with instructions to decide whether the danger caused by officially attributing the deleted portions of the transcript to the former Secretary of State would justify the exercise of extraordinary restraint under a basic notion of national self-preservation.

Portions of the opinion appear below:

Appellee in this Freedom of Information Act (FOIA) case seeks to compel disclosure of deleted portions of the transcript of a socalled "background" press conference held by former Secretary of State Kissinger on December 3, 1974. Appellants assert that the disputed material was properly classified pursuant to an Executive order, and therefore is exempt from mandatory disclosure under FOIA. 5 U.S.C. 552(b) (1). . . . It is further contended that any disclosure, mandatory or discretionary, would be highly undesirable, since official attribution of the deleted passages to the former Secretary would adversely affect the negotiating position of the United States in the strategic arms limitations talks (SALT) with the Soviet Union.

The district court found that the State Department, in deciding to classify sections of the press conference transcript, had not taken into account procedural and substantive criteria established by the relevant Executive order. . . .

...

The rules require that only paraphrase be used in reporting remarks made at background press conferences. In addition, information provided on a "background" basis may be attributed only to unnamed "senior State Department officials," not to any specific individuals. When information is provided on a so-called "deep background" basis, even its State Department origin must be concealed. In those instances, the press may refer only to "informed sources."

In November, 1974, President Ford and General Secretary Brezhnev met in Vladivostok for talks which led to an agreement outlining the future course of SALT. In the aftermath of the Vladivostok discussions, Secretary Kissinger conducted two background briefings, one on November 25, 1974, the other on December 3. Of the more than 300 media representatives accredited to the State Department, fewer than forty were invited to the December 3 briefing. Thirty-two attended, including two representatives of foreign news agencies. None of these reporters had a security clearance, and none attended the press conference in the performance of any official duties. Portions of the briefing were explicitly placed in the "deep background" category.

After the [December 3] conference, a verbatim transcript was prepared by the State Department, and approximately six copies were made. No classification markings were affixed to any of these copies, and, indeed, no classification determination was made at the time the transcript and copies were produced. Copies not distributed elsewhere within the State Department were kept in the Department's Office of Press Relations in a safe approved for the storage of classified information. Access to a copy of the transcript was permitted only with the authorization of either the Director or Deputy Director of the Office of Press Relations. At most, two or three reporters actually saw the written text of the December 3 briefing. They were allowed to take notes on the transcript, but not to duplicate any portions thereof.

In a letter dated February 19, 1975, appellee requested a copy of the December 3 background press conference. Prompted by this request, George Vest, Director of the State Department's Bureau of Politico-Military Affairs, undertook a review of the transcript. Mr. Vest concluded that the entire 59-page text of the December 3 briefing should be released to appellee, with the exception of three deletions totalling 44 lines (approximately two pages). In a letter dated March 5, 1975, Mr. Vest informed appellee that the deletions were "classified on the ground that attribution of these remarks to the Secretary of State could damage the national security." Although the March 5 letter did not disclose the precise status assigned to the deleted passages, Mr. Vest had in fact labeled all three excisions "Confidential.” Two of the three transcript sections withheld from appellee were in those portions of the press conference con