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Until 1971, the national security secrecy system had been created and maintained by the executive branch alone. The only law establishing the system was a series of Executive orders issued by Presidents Truman, Eisenhower, Kennedy, and Nixon.
There were security clearances in many Government agencies and millions of pages of classified documents, but there was no systematic enforcement of secrecy and no stamp of approval by the courts or the Congress. In my view, all that began to change when the Nixon administration went to court in May 1971 to try to block the New York Times from publishing the Pentagon papers.
Although the case is widely regarded as a victory for freedom of the press, and indeed it was in its result, the Pentagon Papers litigation actually set in motion the development of a formal law of national security secrecy. In the Supreme Court decision in that case, the Court abandoned the longstanding limitation of prior restraints on publication to narrow wartime circumstances. The pivotal concurring opinions of Justices Stewart and White for the first time generalized the category of information subject to prior restraint and recognized the authority of Congress to legislate in this sensitive constitutional area.
After the dust had settled, the Nixon administration and its successors began to claim that the Pentagon papers decision had actually established two key principles in a new law of secrecy: First, that the Government can block publication of information if its disclosure will "surely result in direct, immediate and irreparable damage to the Nation," as Justice Stewart put it; and second, that if Congress passes a statute authorizing prior restraint, the standard for imposing Government controls over information can be even lower.
The cat was out of the bag and a succession of post-Watergate cases transformed it into a tiger with a ravenous appetite for the first amendment. The most spectacular prior restraints in the period after the Pentagon Papers decision involved former employees of the CIA whose writings the Government claimed the right to censor. The Victor Marchetti and Frank Snepp decisions established the legal principle that the CIA, and presumably other Government agencies as well, can bar a current or former employee from publishing, and I quote from the injunction: "any information or material relating to the agency, its activities or intelligence activities generally, either during or after the term of his or her employment without specific prior approval of the agency."
This new principle was based on the law of contract. If you worked for an agency that operates within the national security secrecy system, your employment contract obligates you to waive permanently your first amendment rights to speak and publish without prior restraint.
Closely paralleling the growth of contract secrecy was the development of a legal theory that certain information can be "born classified." In 1979, the Justice Department moved against the Progressive magazine in an effort to block it from publishing information that was already in the public domain. The Progressive case involved an article written about the hydrogen bomb based on information obtained by its author, Howard Morland, from studying government publications.
In its effort to obtain an injunction, the Government argued that information about atomic weapons is "born classified" and can be restricted under the Atomic Energy Act, whether or not its disclosure would meet the Pentagon Papers standard. Although the Government eventually abandoned the Progressive case when it became clear that the information in the article was not secret, the theory put forward by the Justice Department was that there are whole categories of dangerous information that are beyond the reach of the first amendment.
Three years later, in 1982, the Reagan administration began using this same theory in its well-publicized effort to persuade academic scientists to submit certain categories of research to the Government for clearance. The report I have attached to my statement provides an account of the pressures on academic freedom that are resulting from this practice in a wide variety of areas that go beyond national security.
Like the law of secrecy, the law of national security surveillance has evolved from bold Presidential assertions of power to an extensive authority set forth in decisions and congressional enactment. Every President since Franklin Roosevelt has claimed the power to conduct warrantless wiretapping of foreign governments, but it was the Nixon administration which put forward the most sweeping claims in this area and sought to have them approved by the courts.
In a series of cases beginning in 1969, the Nixon administration argued that it had an inherent power to disregard the fourth amendment warrant requirement whenever it conducted wiretaps. or physical searches of persons or groups believed to be a threat to the national security.
In the first such case to reach the appellate level, this argument was rejected by a court of appeals and a unanimous Supreme Court in 1972. Like the Pentagon Papers decision, however, the Court's ruling in the national security wiretap case was also significant for what it did not decide. Since the wiretap at issue had been installed on a domestic organization with no connections to any foreign power, the court left open the possibility that warrantless surveillance of a person or a group with foreign ties would be legal. The political turmoil in the Nixon White House obscured the steady development of a new law of national security surveillance. Taking its cue from the Supreme Court's 1972 wiretap decision, the law began to focus on the elusive concept of foreign agency. Since the Court had held that the fourth amendment only barred warrantless national security surveillance of domestic targets, suspected agents of a foreign power were presumed to be beyond its reach. Ironically, this distinction established a legal rationale for much of the surveillance that had been condemned in the Nixon era. One example was the CIA's program of spying on the antiwar movement entitled "Operation CHAOS." This was a surveillance effort to ferret out links between the leaders of the peace movement and foreign governments. Although no such links were ever established, the program resulted in the creation of CIA files on more than 300,000 domestic activists participating in activities that had been under suspicion for having a foreign stimulus.
The Ford, Carter, and Reagan administrations have all claimed, in a series of Executive orders, that undefined foreign agent surveillance is beyond the reach of the fourth amendment. These Executive orders have been issued with much public fanfare proclaiming the rule of law over the intelligence abuses of the Watergate
At the same time, however, the orders have been broadly drafted to fit the needs of national security, regardless of their impact on civil liberties. The Reagan order represents the culmination of this process. It goes beyond the foreign agent approach of the Carter administration and authorizes the CIA to conduct general surveillance of anyone inside the United States who may be in possession of significant foreign intelligence, such as journalists or academics or businessmen returning from trips overseas.
It also authorizes the CIA to conduct undefined covert operations inside the United States so long as they are not, and I quote: "Intended to influence the political process, public opinion, policies or the media." No secret abuses can occur under this order; everything is out in the open, all within the claim of a general foreign security loophole to the Constitution.
Now, Mr. Chairman, this is the background, I think, on the areas of law that you have had most interest in in your investigations of national security in 1984. I think what we see is that national security has become a very broad concept with very little definition. There have been some attempts on the part of the Congress, few attempts on the part of the courts and even fewer attempts on the part of the executive branch to limit its scope.
I think the ultimate effect of much of the law that has developed in this area has been to authorize a great deal of flexibility in the management of security practices in the national security area.
The result is that today we have greater secrecy, more censorship, a CIA with more domestic authority, an FBI with fewer restraints and a National Security Agency with broader power than we have ever had in our history.
What is most remarkable about all of this is that we seem to have drifted into a state of permanent emergency that has no immediate context. We do not know what the emergency is or how long it will last. We do not even have a clear understanding of its impact on our system of liberty since we have been conditioned to accept the view that the rule of law often requires individual liberty to yield to claims of security under certain limited circumstances.
In fact, we do not even think of ourselves as living in a state of emergency. On the contrary, we believe that a general suspension of liberty happens only in other countries. Take a typical example close to home. On October 16, 1970, Prime Minister Pierre Elliott Trudeau went on Canadian national television and declared a "state of insurrection" throughout Canada based on the kidnaping of a Canadian minister and a British consul by Quebec separatists. Trudeau invoked the Canadian War Measures Act and authorized the national police in Canada to conduct predawn roundups of French Canadians suspects of associating with the separatists. Trudeau's emegency decree had the effect of temporarily suspending the Canadian Constitution.
Comparing the Canadian and American approaches to national security, the Canadian Attorney General, John Turner, made a wry comment after Trudeau lifted his emergency decree. He said:
In a certain sense, it is a credit to the civil liberties of a country that it has to invoke extraordinary powers to cope with a real emergency. Some countries have these powers at their disposal all the time.
I think the question, perhaps a central question in this hearing— in these hearings-is whether the United States is becoming such a country. Without clearly defining what we mean by national security, we have turned it into a talisman to ward off any evil that might befall us as a nation.
It is disturbing, but not surprising, therefore, that the current administration has turned the CIA loose to spy on Americans and conduct covert actions inside the United States, created a presumption that all Government information about foreign or military affairs can be withheld from the public, pardoned FBI officials who supervised criminal burglaries as heroes in the war against terrorism and mounted a campaign for official censorship of scientific research.
I think there is a simple question that we must ask ourselves as we look at these recent developments and the long history of national security maneuvers that preceded them, and that is, where does the Constitution fit into this field? National security, we must remember, is what protects us from our adversaries, but the Constitution and the Bill of Rights are what distinguish us from them. The question, of course, is not just one of law. It may not even be one primarily of law. We must decide what we mean by national security and whether its protection should be allowed to blur our principle distinguishing features as a nation. "Liberty lies in the hearts of all men," Judge Learned Hand said in a famous speech delivered during a time of grave national danger in 1943. "When it dies there, no constitution, no law, no court can save it."
Judge Hand's speech echoed the warnings of the drafters of the Bill of Rights, and in the words of Thomas Paine, "Those who expect to reap the blessings of freedom must also undergo the fatigue of supporting it."
Now, a second theme which I just would very briefly like to touch on, Mr. Chairman, following my assignment to provide a perspective on what has come out in these hearings, is the relationship between technology and civil liberties, and more particularly, the steady erosion of legal protections of individual privacy under the pressure from new technologies of communication.
This theme has been amply explored by many witnesses and I will only briefly summarize what I regard as the principal areas where legal developments have lagged far behind technology. The fourth amendment is rooted in the law of physical property and has traditionally been applied to protect property holders and occupants against unreasonable physical intrusion by the Government. Where no physical intrusion has occurred, almost by definition, the law has long assumed that no invasion of privacy has taken place. For example, the Supreme Court, until 1967, declined to find that wiretapping involved any cognizable privacy interest on the part of persons whose telephone communications were intercepted.
Rapid changes in communications technology today are making property-based privacy protections substantially obsolete. Let me just summarize in a few sentences the major areas in which legislative action is essential if the privacy of communications is to be protected.
First, in the area of telephone and computer communications, messages are protected against intentional overhearing, but not against other forms of interception. Second, the combining or matching of computer data banks containing_unrelated personal files is virtually unregulated today, despite a Federal statute that supposedly prohibits the Government from using personal information for purposes other than those for which it was collected except under certain defined circumstances.
Third, the privacy of mail matter is protected to the extent that it is enclosed in a wrapper or envelope, but there are few protections for private messages sent by means of electronic mail.
Fourth, the privacy of personal communication collected by credit reporting companies has some statutory protection today, but personal information collected by interactive cable television companies about the viewing habits and consumer choices of subscribers is subject to little or no protection.
These are just a few of the many areas of rapidly changing communications technology where individual privacy receives little or no protection. The courts have shown no inclination to extend the fourth amendment in this direction without statutory guidance from the Congress and from State legislatures.
This subcommittee is to be commended for its wide ranging survey of this problem and for setting a large agenda for legislation to update the law of privacy protection in the age of electronic communications.
Thank you very much, Mr. Chairman. I would be happy at any point to answer your questions.
[The statement of Mr. Shattuck follows:]