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Congress, and I think it does some comparison. I don't know how many years back it goes, but I think it certainly talks about numbers of persons with authority to classify and I believe it also talks about documents and also the numbers of surveys and audits that have been done in terms of going in and checking on the practices of individual Government offices.
So there is some of that there, Mr. Chairman. I don't know how far back it goes.
Mr. KASTENMEIER. What role has Congress had in this? Could it have imposed more stringent standards on the executive branch so as to ensure that that which is classified is only that which should be classified?
Mr. Plesser, do you happen to know?
Mr. PLESSER. There are some constitutional prerogatives and some traditions that Congress may not be able to affect. Congress has put out some mixed signals on this, I think that we can go through most of those examples and say that there are perhaps competing interests and no one is suggesting that there has to be complete openness on all information. I don't think there is really much conflict between export controls on one hand and on the other hand, a desire for open information in terms of Pentagon or Defense Department contracting.
I think they are just two totally separate issues. Export controls are for economic reasons, as well as for security interests. It is very difficult in export control to determine when restrictions are being made for security or economic reasons. Most controls are to control the availability of rare materials or precision tooling-that is really not a question of information; it is just that we do it better and we don't want those products going to other people. You can have export administration controls to preserve domestic markets.
On the question of classification, the Executive order now is as broad as any we have had to deal with, but I also probably agree that a great deal of information is now being released.
Mr. KASTENMEIER. Thank you.
I would like to go on to one other thing. The Justice Department has issued guidelines for video surveillance, Mr. Plesser. Under what circumstances do you think that such surveillance may be justified? What are the dangers of it? What might be the safeguards?
Mr. PLESSER. I am not completely familiar with those, but I think that the real danger is in the mixed technologies. I mean they are the real concerns that I have. When something is part radio, part cable, part wire, it is simply impossible for us to know when we make a transaction on a telephone on what technology it is going to be carried.
If I make a phone call to New York, it may be on a wire; it may be on a microwave; it may on a satellite transmission. I have no way of knowing how that communication is going to be done. Certainly if I am on the receiving end of a telephone from a cordless telephone as well, I don't know.
I am not familiar enough, I think, with the regulations, though, to comment on them. Maybe Ms. Lawton would comment on them more directly.
Mr. KASTENMEIER. Ms. Lawton, would you like to comment on the guidelines for video surveillance?
Ms. LAWTON. I don't have them with me in terms of going into them in detail, Mr. Chairman, but first of all, of course, we are talking about-when you say "video surveillance," I am assuming you are limiting this now to the context of collecting evidence. We use video surveillance as a security technique rather commonly, but that is generally with a notice published and people are forewarned. For example in this store there are video cameras. We use it as we would use any other form of search in order to gather evidence.
It is particularly useful in those kinds of crimes where a transaction can be completed without words; a transfer of goods in a wink; the assembly of pipe bombs with the traditional wiretap producing only such evidence as: "Hand me the screwdriver;" "Give me that;" "Do you want some of this?" Nothing could be used in evidence. Combined with a video camera that shows that the screwdriver is to loosen the cap in order to get the detonator connected with the pipe bomb gives you a different form of evidence, much more useful in the courtroom.
That is essentially what we use it for. We use it with warrants. Mr. KASTENMEIER. Yes; you have really two potential uses for video cameras: general surveillance, and then also for evidentiary purposes. I am reading from the Department of Justice directive: Requests may be approved as a matter of course by one of these officials when no intrusion on the person's legitimate privacy rights appears to be involved. The most common situation is when a consenting party to the presence of the camera will be present at all times.
These are used, apparently, to record the scams and other things. It was pointed out that these surveillances are done in black and white to make them have a documentary type of appearance. They are persuasive in terms of viewing, at least to the public later on.
Ms. Lawton, you state on page 7 that title III does not apply to video surveillance, but that you believe there is an inherent authority to use it. You said also that this point is being litigated. Could you expand upon that?
Ms. LAWTON. Yes; Mr. Chairman, I will try to word this carefully because it is in litigation. In a criminal case in Chicago involving members of the FALN-and I can't remember what the Spanish letters stand for-the Government sought to introduce or proposed to introduce into evidence not only the electronic surveillance which was conducted on what the Government alleges to be a safe house, but also video surveillance of the same premises showing certain conduct which we allege to be criminal by the defendants. The defendants filed a motion to supress, challenging both the electronic-that is, the aural intercept, and the video intercept. The trial judge ruled the aural intercept admissible and the video intercept inadmissible and that is now on appeal to the seventh circuit.
We had a court order to do both. The problem is that the court order for the aural surveillance was clearly authorized by title III. We rely on rule 41 to get the video court order, but with a twist that says to the court, use the rule 41 authority to issue the court
order, but the title III type procedures for implementing it, rather than the rule 41 procedures. That is where we are now.
Mr. KASTENMEIER. Would the administration concede, Ms. Lawton, that we need legislation on the subject and we ought to clarify what the statute says?
Ms. LAWTON. I can't say what the administration would concede, Mr. Chairman, I haven't checked it out. Those of us who deal with the statutes are concerned that we need clarification, yes.
Mr. KASTENMEIER. Well, I am being called to the floor, so I think we will conclude these hearings. I want to thank all three of you, Ms. Lawton, representing the Justice Department; Mr. Plesser and Mr. Shattuck. It is always a pleasure to greet Mr. Shattuck, particularly back here in this capacity, although he speaks as an individual here this morning.
All of you have contributed in responding to some of the major questions with respect to civil liberties, to privacy, and to questions which the "1984" hearing series has addressed itself.
While this is the last hearing in the series, I doubt whether the questions on this subject end here today. Nonetheless, as a first step in contemplating the problems and possibly some of the solutions, I think this has been very useful.
I thank the three of you. I regret that more members of the Congress couldn't be present, but in any event, I will assume their interest in this subject is a continuing one.
Accordingly, the hearing is adjourned.
[Whereupon, at 11:50 a.m., the subcommittee was adjourned, to reconvene subject to the call of the Chair.]
APPENDIXES TO HEARING HELD NOVEMBER 2, 1983
APPENDIX I.-MISCELLANEOUS ARTICLES
Cronkite, "Orwell's '1984'-Nearing?," New York Times, June 5, 1983.
Abrams, "The New Effort to Control Information," N.Y. Times Magazine, Sept. 25, 1983.
Shattuck, "National Security a Decade After Watergate," Democracy (Winter, 1983). Emerson, "The State of the First Amendment as We Enter '1984,' Yale L. Rep. 15 (Spring, 1984).
APPENDIX II.-MATERIALS RELATING TO RESTRICTIONS ON THE PRESS IN GRENADA H. Res. 384, 98th Cong., 1st Sess. (1983).
News Release by the Secretary of Defense dated August 23, 1984, and attached Final Report of the CJCS Media-Military Relations Panel (Sidle Panel).
Humphries, "Two Routes to the Wrong Destination: Public Affairs in the South Atlantic War," 36 Naval War C. Rev. 57 (No. 3) (1983).
Gottschalk, "Consistent with Security' A History of American Military Press Censorship," 5 Comm. and the Law 35 (1983).
"U.S. Troops Remove Four Reporters," Washington Post, October 27, 1983.
"Invasion Secrecy Creating a Furor: Speakes Complained in Memo," Washington Post, October 27, 1983.
"Administration Limits News of Grenada," Washington Post, October 27, 1983.
McCloskey, "Invasion and Evasion," Washington Post, October 28, 1983.
"Admiral Fights 2 Battles: With Grenada and Press," Washington Post, October 31, 1983.
Grunwald, "Trying to Censor Reality," Time, November 7, 1983.
"U.S. Press Curbs in Grenada May Affect International Debate," New York Times, November 8, 1983.
Cockburn, "The Press and the Invasion," The Village Voice, November 8, 1983.
"Information Blackout Revives Old Issues," Washington Post, November 15, 1983.
Johnson, "Echoes," Washington Post, January 29, 1984 (Results of Harris Poll on the press in Grenada).
Middleton, "Barring Reporters From the Battlefield," N.Y. Times Magazine, Feb. 5, 1984.
"U.S. Bars Reporters From Naval Exercises," Washington Post, May 6, 1984.
"Pentagon Plans Media Pool to Cover Missions," Washington Post, August 24, 1984. "Pentagon Forms War Press Pool; Newspaper Reporters Excluded," New York Times, October 11, 1984.
Letter to House Committee on the Judiciary from Thomas J. Roche, Jr., dated November 4, 1983.
Letter to Hon. Robert W. Kastenmeier from John Hendry dated October 30, 1983. Letter to Hon. Robert W. Kastenmeier from Ralph D. Bradway dated November 8, 1983.
Letter to Hon. Robert W. Kastenmeier from Elbert N. Mullis, Jr., dated November 4, 1983.
Letter to David Brinkley from S. H. Byers, President, Byco, Inc., dated November 4, 1983.
APPENDIX III.-PREPUBLICATION REVIEW PRACTICES BY GOVERNMENT AGENCIES
Bamford, "How I Got the N.S.A. Files: How Reagan Tried to Get Them Back," Nation, November 6, 1982.
Memorandum from William French Smith, Attorney General, to Heads of Offices, Boards, Divisions and Bureaus, dated March 11, 1983, regarding Presidential Directive on Safeguarding National Security Information.
Burnham, "The Silent Power of the N.S.A.," N.Y. Times Magazine, March 27, 1983.
Taubman, "Security Agency Bars Access to Nonsecret Material, Library Records
R. McGehee, Deadly Deceits 196-203 (Appendix: This Book and the Secrecy Agreement).
By Walter Cronkite
In 1948, George Orwell wrote a novel satirizing the dehumanizing trends of the age. He first thought of calling it "The Last Man in Europe" but settled on a shorter title, transposing the last two digits of the date and giving the world a new synonym for tyranny: "Nineteen Eighty-Four."
How close have we come to his dark vision? Clearly, we aren't there yet. For one thing, 1984 will be an election year in America. In the world of Big Brother and the Thought Police, there were no elections anywhere. Still, if Winston Smith, the hero, were set down in today's world, there would be things he might recognize, along with some new threats to freedom his creator could not have imagined.
In the book, war and the excuse it provided for tight controls constituted a mechanism used by those in power to perpetuate their power. Orwell drew upon Stalinist Russia and Hitler's Germany for his inspiration, but it was the West that concerned him. He feared the impact of the cold war on the democracies' traditions, the ideologues of the left and right for whom ends justified means, the uses to which new technologies would be put.
An elite of ideologues, bureaucrats and scientists ruled a barely literate majority called the proles in Orwellian society. Would Smith recognize the origins of his world in a democracy such as ours, where technological complexity is on the rise and educational performance on the decline; where the result is a growing number of functional illiterates, barely able to cope in their personal
Walter Cronkite is a special correspondent for CBS News.
lives and clearly unfit to consider competently the affairs of the nation?
The State, or the Party, was the source of all information (and disinformation). Events were reported, or not, to fit the needs of policy; the past was rewritten to fit the current party line. Could Smith see the seeds of his Oceania in our society, in which the Federal Government tries to shroud more and more of its activities with "security" classifications; in which scientists keep the Government informed about their research; in which some of their ideas are stamped "classified" at birth?
Language, in the novel, was a primary tool of manipulation, and doublethink was a mental trick that had to be mastered by rulers and ruled alike. Doublethink was "the power of holding two contradictory beliefs in one's mind simultaneously and accepting both of them," of using "conscious deception while maintaining the firmness of purpose that goes with complete honesty."
In our world, where a Vietnam village can be destroyed so it can be saved; where the President names the latest thing in nuclear missiles the "Peacekeeper" in such a world, can the Orwellian vision be very far away?
No image in modern fiction has so burned itself into public consciousness as Big Brother's eyes and the omnipresent telescreen. The total absence of privacy, the idea that the government is (or may be) always watching, means, most of us would agree, the ultimate loss of freedom. The two-way telescreen may have been a fantastic idea in 1948; the technology is here for 1984.
Our concern for security has led to an enormous growth in surveillance. There are cameras in banks, super
markets and department stores; cameras watch hallways and alleys and entrances to buildings. In Miami Beach, there are cameras on street corners, monitoring the sidewalks.
Computers provide surveillance of another kind, gathering information on our financial affairs, buying habits, travel patterns. If we have cable TV systems at home, they may collect data on our viewing patterns. If we participate in a cable talk-back system, we may be giving a data bank our political opinions, with our names and addresses attached.
The Government, of course, already collects enormous amounts of information in data banks belonging to the Internal Revenue Service, Social Security Administration, the Census Bureau and a dozen or so other computers. If Big Brother could just get all the major private and government data banks in America linked, he might be 80 percent of the way home.
Big Brother's ears have plugs in them right now (or they are, by law, supposed to), at least on the side turned toward domestic telephone and cable traffic. But the National Security Agency's ability to monitor microwave transmissions, to scoop out of the air vast numbers of communications, including telephone conversations, store them in computers, play them back later, has a truly frightening potential for abuse.
George Orwell issued a warning. He told us that freedom is too much taken for granted, that it needs to be carefully watched and protected. He did not say his fictional vision of 1984 was bound to happen. He said it could happen- here. His last word on the subject was a plea to his readers: "Don't let it happen. It depends on you."