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Washington, DC.

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.

the first amendment and other governmental interests. Resolution Throughout our Nation's history there has been tension between of these competing needs has been a difficult and often stormy being resolved by the Federal courts. As vital as preservation of process. Frequently, we think in terms of these many conflicts 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


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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.



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.
Mr. ABRAMS. Is the mike on?

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

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