1984: CIVIL LIBERTIES AND THE NATIONAL SECURITY STATE WEDNESDAY, NOVEMBER 2, 1983 HOUSE OF REPRESENTATIVES, AND THE ADMINISTRATION OF JUSTICE OF THE COMMITTEE ON THE JUDICIARY, The subcommittee met at 9:30 a.m. in room 2141 of the Rayburn House Office Building; the Honorable Robert M. Kastenmeier (chairman of the subcommittee) presiding. Present: Representatives Kastenmeier, Mazzoli, Synar, Schroeder, Glickman, Morrison, Moorhead, Hyde, DeWine, Kindness, and Sawyer. Staff present: Deborah Leavy, David W. Beier, counsel; Joseph V. Wolfe, associate counsel; Audrey Marcus, clerk. Mr. KASTENMEIER. The committee will come to order. Mr. SYNAR. Mr. Chairman. Mr. KASTENMEIER. The gentleman from Oklahoma. Mr. SYNAR. Mr. Chairman, I move the committee permit the meeting this morning to be covered, in whole or in part, by television broadcast, radio broadcast and/or still photography, pursuant to rule 5 of the committee rules. Mr. KASTENMEIER. Without objection, the motion is agreed to. The Chair will state that some of our members are in party caucus and will be here momentarily. Prior to hearing any formal opening statement, I would like this opportunity to put our hearing in an institutional and historical context. Throughout our Nation's history there has been tension between the first amendment and other governmental interests. Resolution of these competing needs has been a difficult and often stormy process. Frequently, we think in terms of these many conflicts being resolved by the Federal courts. As vital as preservation of that forum is for all of us, the courts are not the only place for dealing with these issues. As Holmes said several decades ago, "It must be remembered that legislatures are the ultimate guardians of the liberties and welfare of the people in quite the same degree as the courts. Those of us fortunate to serve in an elected capacity in Congress or elsewhere have a special responsibility to uphold the Constitution. In the past decade this committee, indeed, this subcommittee, has been involved in more than one of these disputes. My col leagues and I joined together in a bipartisan effort to respond to the Supreme Court decision in Stanford Daily v. Zurcher. We have undertaken similar initiatives dealing with reporter's privilege, privacy protection from intrusive wiretapping in terms of domestic law enforcement, to the passage of the bill on the Foreign Intelligence Surveillance Act, and even prior to that, to ridding ourselves of title II of the Internal Security Act, wherein this Nation maintained detention camps similar to those that were utilized at the outset of World War II. I recite this history to establish that these hearings are part of an historical continuum. The issues we will address today are not partisan in nature. They are part of a diligent oversight of the executive branch. We begin the first of 2 days of the series of hearings on "1984: Civil Liberties and the National Security State." Since George Orwell penned his famous novel of life under "Big Brother," the year 1984 has had an ominous sound, threatening to ring in an era in which civil liberties would be crushed under the heels of the State. The very fact that we hold these hearings today is solid evidence that such a world has not yet arrived. But Orwell's "1984" was not intended to be a promise or even a prediction. It was a warning. The coming of the year 1984 thus offers a unique opportunity to examine the state of our civil liberties as well as what the future may hold in the light of Orwell's fears and our own. Among the most important themes developed by Orwell is the justification used by the State for the development of both secret surveillance over activity of its citizens and control over information through the "Ministry of Truth." In "1984" the rationale for repression was the existence of total war. In our era, it may well be the creation in the last quarter of the century of a new culture, a national security culture protected from the influences of American life by the shield of secrecy. The evolution of national security as the predominant concern of the Federal Government appears to have been influenced by both increased international tensions and shifts in ideology. In the years that immediately followed the Second World War, concerns over national security produced statutes that reduced the flow of information: the Atomic Energy Act, the Patent Secrecy Act, the McCarran Act. These were enacted at a time when a heightened sense of conflict in foreign affairs coincided with the rise of McCarthyism. As the Nation passed through the cold war phase, the country's laws and information practices gradually changed in the other direction. Congress enacted measures aimed at privacy: the Privacy Act, the Bank Records Secrecy Act, the Foreign Intelligence Surveillance Act, title III of the Omnibus Crime Control Act on wiretapping, as well as statutory safeguards on the free flow of information. In recent years, however, the pendulum has begun again to swing back toward restrictions on civil liberties, as witnesses will develop more fully in their testimony today and in the hearings to come. I would like at this point to introduce our opening witness. There is no finer first amendment lawyer than Floyd Abrams. A graduate of Yale Law School, he is a partner in the New York City firm of Cahill, Gordon & Reindel. Mr. Abrams has considered the conflict between national security and the free flow of information as an attorney on cases such as the Pentagon Papers case, and is the author of the lead article in the New York Times Sunday magazine which featured him on the same issue. We are very pleased to have you here this morning, Mr. Abrams. You may proceed as you wish. TESTIMONY OF FLOYD ABRAMS, ATTORNEY, CAHILL, GORDON & REINDEL Mr. ABRAMS. Chairman Kastenmeier and members of the subcommittee, I am honored by your invitation to testify today. Apart from my pleasure about being here, I do admire your choice of topic. Mr. KASTENMEIER. Please see if the microphone is working. Thank you; I was saying, Congressman Kastenmeier, that I admire your choice of topics for these hearings this morning. It seems to me that you have chosen a central one for the future of our country. And as we meet virtually on the eve of 1984, the Orwellian nightmare referred to by you, lucid as it is, offers us a basis for learning and for comparison. Allow me at that outset to recall for you Orwell's grim vision of 1984 as set forth in his book. It is of a nation, Oceania, of which we and Great Britain are a part, which is perpetually at war with the other two superpowers of the world. It is of a society premised on terror, totally dominated by totalitarian rulers, in which any who differ are bludgeoned by their rulers, brainwashed and ultimately either vaporized or, as the hero in the book, himself utterly drained of humanity and filled with only those thoughts that the State chooses that he have. If you want a picture of the future, Winston Smith, the hero of the book is told by the individual who is involved in the torture of him, imagine a boot stamping on a human face forever. "1984" is also a vision of the State with the clearest possible views of the dangers of truth, a State which has not only redefined falsehood as truth but in which the definition of truth constantly changed, a society in which the hero finds an old newspaper clipping conclusively proving that the confessions of three supposed traitors were fraudulent, that they were in fact not at the place they had confessed to being at, and which he then thinks the following to himself: "There was only one possible conclusion: the confessions were lies." Of course, this is not in itself a discovery. Even at that time Winston had not imagined that the people who were wiped out in the purges had actually committed the crimes that they were accused of. But this was concrete evidence; it was like a fragment of the abolished past, like a fossil bone which turns up in the wrong stratum and destroys a geological theory. It was enough to blow the party to atoms, if in some way it could have been published to the world and its significance made known. Of course, it was never published to the world, and the hero himself is later bludgeoned, tortured, and brainwashed into believing that he had never seen the clipping, that it had, indeed, never existed. It is, of course, not our society. It is worth saying that today. It will not be our society in 1984. Or, we may hope, thereafter. It is worth pausing for a moment on why that is so. In good part, it is because we live under a system of law with a Bill of Rights which protects against just the elements of "1984" we find most offensive-in short, a State that directs us, controls us and ultimately rules us. We are, need I say, not tortured because we hold different views than our Government. In fact, so far does our constitutional protection go that truthful statements are almost totally insulated from Government sanctions of any sort. So far does our protection go that we are free to express any opinion without fear of governmentally imposed sanctions. There is no such thing in this country, Justice Lewis Powell has said for the U.S. Supreme Court, "as a false opinion." Our law, then, goes far toward protecting us against the "1984" nightmare becoming a reality. The absence of such legal protection is evident abroad. Consider one portion of the public interrogation at the trial of Soviet dissident Sinyavsky, a portion which-fittingly-could be annexed to an updated version of "1984." Accused of anti-Soviet behavior, the prosecutor asked this great author the following: Prosecutor, "Please don't lecture us on literature. I asked you one simple, concrete question: Why did you portray Lenin in such an unattractive way?" Sinyavsky: "I said that you cannot make a cult of Lenin. To me Lenin is a human being; there is nothing wrong about that." Judge: "What did you mean in this passage about the deification of Stalin?" Sinyavsky: "I am being ironical about making a cult of him. If Stalin had lived a little longer, it might well have come to that.' And on and on and on, with Mr. Sinyavsky being persecuted and prosecuted for the expression of his views. To cite the Sinyavsky example is simply and sadly to say that "1984" continues to have more than allegorical relevance in totalitarian states such as the Soviet Union. But the question, Mr. Chairman, I think is whether it has genuine relevance here at home. And I believe it does. For if our Constitution affords us enormous protection in the areas of freely expressing our opinions and freely telling the truth-even when the Government prefers that we not do so there are some areas that we cannot look to the Constitution for much in the way of refuge or comfort. They relate to the availability of information itself, the basis of the formation by the public of its views and its expression of them. In this area we must not look to our almost 200-year-old Constitution but to our living representatives in the Congress and in the executive branch. Of them and of you, I believe the public has much to ask. For if the public does not have information, it cannot play a meaningful role in the formulation of policy. When informa tion is suppressed by the Government, the legally guaranteed freedoms to think and to speak become meaningless. Carried to its ultimate end, it would be "1984" without cruelty, without terror, but nonetheless without freedom. Let me offer some examples. The administration's efforts to censor the speech of former Government officials who have had access to certain kinds of classified information strikes at the heart of the notion that an informed public is an essential ingredient of a free people. According to the terms of the contract which is to be signed by in excess of 100,000 Government employees and officials, all writings of theirs of any sort that concern explicitly or implicitly intelligence activities, sources or methods must first be cleared by the Government itself for the rest of the lives of those employees. Such information need not even be classified to be subjected to governmental censorship. Thus, if a former high-level Government employee who would sign such an agreement wanted today to criticize the failure of intelligence in Lebanon or in Grenada, he would first have to clear his statements-even if it contained no classified information at all-with the very people he wanted to criticize. Orwell would have understood. In response to this risk, we are urged by the proponents of the new censorship agreement to trust the Government to enforce it fairly, to trust the Government not to use it for political purposes, to trust the Government not to censor too much. Orwell knew better. He teaches us-to put the point mildly-a government can hardly be trusted in judging criticism of itself. Orwell also teaches us that the effect of censorship is a powerless, uninformed, and utterly cynical public. "Who cares," asks Julia, the heroine of "1984," whether the Government was now telling the truth about past events. "It's always one bloody war after another, and one knows the news is all lies anyway." I referred earlier to the freedom afforded by our Constitution to form and express opinions. But in recent years, and to a lesser extent, still farther back years, that freedom has been frustrated by the use of our Government of the McCarran-Walter Act to deny visas to speakers whose views were sought by American audiences. How can the administration's denial of a visa to Mrs. Hortense Allende, the widow of the former Chilean prime minister, be justified when some of our fellow citizens wish to hear her? Or, more recently, the denial of visas to Sandinista leaders that Members of Congress, among others, wished to hear? Orwell surely would have understood a mindset which effectively intrudes upon the ability of our citizens, not to say our elected representatives, to decide for themselves what to think after hearing those with whom we may differ. I could cite numerous other examples which trouble me about the ability of the public to receive information. The exclusion of the press from Grenada at a time when it was especially urgent that the public have nongovernmental information about the invasion; the efforts to limit the flow of information to the public under the Freedom of Information Act; the inhibition of the flow of films into and even out of our country based on their content; revisions in the classification system to ensure that more and not less infor |