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The New York Times Magazine/SEPTEMBER 25, 1983
By Floyd Abrams
MONTH AGO TODAY, THE REAGAN ADMIN. istration publicly released a contract that has no precedent in our nation's history. To be signed by all Government officials with access to high-level classified information, it will require these officials, for the rest of their lives, to submit for gov. ernmental review newspaper articles or books they write for the general reading public.
The contract will affect thousands of senior officials in the Departments of State and Defense, members of the National Security Council staff, senior White House officials and senior military and Foreign Service officers. Its purpose is to prevent unauthorized disclosure of classified information, but its effects are likely to go far beyond that. It will give those in power a new and powerful weapon to delay or even suppress criticism by those most knowledgeable to voice it. The new requirement, warns the American Society of Newspaper Editors, is "peacetime censorship of a scope unparalleled in this country since the adoption of the Bill of Rights in 1791."
The subject of hearings earlier this month of a subcommittee of the Senate Governmental Affairs Committee, this latest attempt at information control by the Reagan Administration is part of a far more sweeping policy. It is one unique in recent history clear, coherent and, unlike, that of some recent Administrations, not a bit schizophrenic. More important, it seems at odds with the concept that widespread dissemination of information from diverse sources furthers the public interest. In fact, it appears to be hostile to the basic tenet of the First Amendment that a democracy requires an informed citizenry to argue and shape policy.
In the two and a half years it has been in power, the Reagan Administration has:
■Consistently sought to limit the scope of the Freedom of Information Act (F.O.I.A.).
Barred the entry into the country of foreign speakers, including Hortensia Allende, widow of Chilean President Salvador Allende, because of concern about what they might say.
Inhibited the flow of films into and even out of our borders; neither Canada's Academy Award-winning "If You Love This Planet" nor the acclaimed ABC documentary about toxic waste, "The Killing Ground," escaped Administration disapproval.
Rewritten the classification system to assure that more rather than less information will be classified.
■Subjected governmental officials to an unprecedented system of lifetime censorship.
■Flooded universities with a torrent of threats relating to their right to publish and discuss unclassified information-usually of a scientific or technological nature-on campus.
So far, these efforts to control information have been noticed by those most directly affected, but by few others. The Administration's policies, says the American Civil Liberties Union, have been "quiet, almost stealthy, difficult to see and therefore hard to resist." There is also the feeling among many Americans that the actions of this Administration are less-than-threatening since they are fueled by the deeply felt conservative ideology of Ronald Reagan and not from the anger or meanness of spirit that, many feel, characterized the Nixon Presidency. Furthermore, wrote The Times's columnist Anthony Lewis, these actions "have had little attention from the press, perhaps because the press is not their principal target."
However little noticed its actions have been, this is an Administration that seems obsessed with the risks of information, fearful of both its unpredictability and its potential for leading the public to the "wrong" conclusions. Its actions are rooted in a view of the Soviet Union, in the President's words, as an "evil empire" - a view undoubtedly bolstered by the destruction by the Russians of a South Korean commercial jet on Sept. 1. It is a view that not only focuses on security but also equates security with secrecy, and treats information as if it were a potentially disabling contagious disease that must be controlled, quarantined and ultimately cured.
HE ADMINISTRATION'S DISTRUST OF THE Freedom of Information Act was evident from its first days in power. Passed in 1966, the act-which has come to symbolize openness in government permits citizens to request documents detailing Government activities. It resulted in news articles revealing, among other instances of governmental wrongdoing, the My Lai massacre, the F.B.I.'s harassment of domestic political groups, and the C.I.A.'s surveillance on American college campuses. It also made possible such diverse books as "Perjury: The Hiss-Chambers Case," by Allen Weinstein; "The Fourth Man," by Andrew Boyle (which in turn led to the identification of Anthony Blunt as a one-time Soviet spy), and "Sideshow: Kissinger, Nixon and the Destruction of Cambodia," by William Shawcross. Mr. Shawcross, a British writer, has called the act "a tribute to the self-confidence of American society."
Contending that the F.O.I.A. had weakened law-enforcement and intelligence agencies and become burdensome to implement, the Administration made enactment of major amendments limiting the scope of the act a matter of high priority. One proposal, not adopted by Congress, sought a total exemption of the C.1.A. from the provisions of the act, even though the agency had won every case in which it sought not to disclose properly classified information.
Unable to obtain Congressional approval of its major amendments,. the Administration resorted to a different tactic. Under the F.O.I.A., classified information is denied the public unless it can be shown in court that the material, according to the prevailing guidelines, was Improperly classified in the first place. By changing the classification guidelines-something the President may do without Congressional approval-the Administration avoided the risk that the courts would order the release of such documents.
Administration seems obsessed with the risks of information, of its potential for leading the public to the "wrong" conclusions.'
President Reagan addresses a press conference at the White House.
Early this year, the Administration took additional steps - again, ones not requiring Congressional approval. The Department of Justice reversed the policy formerly in effect of being "generous" in waiving the payment of processing fees to public-interest organizations seeking information under the act. Sternly phrased legalistic criteria were substituted, barring the waiver of fees unless the Government first decided that, among other things, the information released "meaningfully contributes to the public development or understanding of the subject." The effect of the new guidelines was to permit the Government itself to decide what Information about its conductor misconduct-was "meaningful."
The Administration also moved into other areas of information control. Under the McCarran-Walter Act, adopted over President Harry S. Truman's veto in 1952, foreigners may be denied visas to visit the United States if a consular officer or the Attorney General "has reason to believe" the prospective visitor seeks "to engage in activities which would be prefudicial to the public interest." Given such sweeping statutory authority, an Administration, if it chooses to, can give its ideological dictates free rein.
Invoking this act, the Reagan Administration barred a wide range of foreign speakers. Mrs. Allende was denied entrance to the country to speak. So were the Rev. Ian Paisley and Owen Carron, spokesmen for, respectively, the radical Protestant and Roman Catholic groups in Northern Ireland. Julio García Espinosa, Deputy Cultural Minister of Cuba, was barred from attending a film festival in Los Angeles because his attendance, according to a State Department spokesman, "could be prejudicial to U.S. public interests."
Last year, the Justice and State Departments prevented groups of foreigners from attending a United Nations disarmament session. When protests were made to Kenneth L. Adelman, then deputy United Nations delegate, about the denial of visas to hundreds of Japanese
"THE EFFECT OF
the new guidelines is to permit the Government itself to decide what
information about its conduct is "meaningful.""
who wished to attend the session, his response was: "We have absolutely no legal obligation to let Tommy Bulgaria or anyone else from Soviet-front groups" enter the country.
Motion pictures have not escaped Administration scrutiny. Since its adoption in 1938, the Foreign Agents Registration Act has required any film that is produced under the auspices of a foreign country and that is political propaganda to be so labeled unless the film is "not serving predominantly a foreign interest."
In the single most expansive, and best known, interpretation of the statute by any Administration, the Department of Justice last year sought to require three films produced by the National Film Board of Canada to be labeled as political propaganda. One of the films, "If You Love This Planet," subsequently won an Academy Award. The Department of Justice later summarized the film's "political propaganda" message this way: "Unless we shake off our indifference and work to prevent nuclear war, we stand a slim chance of surviving the 20th century."
Why a film with such a message was considered political propaganda has yet to be satisfactorily explained. Why it was considered to be serving "predominantly a foreign interest" also remains unexplained. On May 23, 1983, Judge Raul A. Ramirez of the United States District Court for the Eastern District of California entered a preliminary injunction restraining the Justice Department from requiring registration of the three films.
"The court," concluded Judge Ramirez, "is having great difficulty in ascertaining how any legitimate Federal interest is espoused or advanced by the classification of documents and/or films such as those before the court as propaganda. It makes no common sense whatsoever when we are dealing in a realm where the entire purpose is the dissemination of free ideas throughout the citizenry of the United States, so that citizens can bounce ideas off of each other to ascertain the truth."
American-made documentary films destined for foreign audiences have not escaped scrutiny either. Under an agreement adopted by a United Nations conference in 1948, film makers pay no American export or foreign-import duties if the United States Information Agency (U.S.I.A.) certifies that they are primarily intended to "instruct or inform" rather than to propagandize.
It is the U.S.I.A. that decides on which side of the line-"Information" or "propaganda"- a film falls. It, in turn, relies on the Government agency with expertise in the area to advise it. Under this Administration, as revealed in the July-August issue of American Film magazine, the result has been that the acclaimed 1979 ABC documentary about toxic waste, "The Killing Ground," was denied a certificate. The Environmental Protection Agency (E.P.A.) concluded last year that the film was "mainly of historical interest" since the United States "has made great progress in managing hazardous wastes." "The Killing Ground" had won two Emmys, first prize at the Monte Carlo Film Festival and been nominated for an Academy Award. But to its E.P.A. reviewers, "the tone of 'The Killing Ground' would mislead a foreign audience into believing that the American public needed arousing to the dangers of hazardous wastes [when] this is no longer the case."
So intently has the Administration focused on the perils of disclosure of information that it has sometimes failed to distinguish between information previously made public and that which has been kept secret. When the unaccompanied luggage of William Worthy Jr., an American journalist, and his two colleagues arrived from Teheran at Boston's Logan International Airport in December 1981, It included 11
volumes of American Embassy documents said to have been seized by Iranians during the takeover of the embassy, reproduced by them and sold freely on the streets of Teheran. The documents had been secret. By the time the three Americans obtained a copy, they could hardly have been so to any intelligence agency in the world.
Nevertheless, the volumes were impounded by the F.B.I. and Customs officials at the airport. A year later, after the journalists had sued the Government, the two agencies agreed to an out-of-court settlement of $16,000.
F ALL THE POLICY CHANGES OF THE REAgan Administration from that of its predecessors, the ones that may have the most lasting impact are the decisions to classify more information and to subject Government officials to lifetime prepublication review.
This occurred in three stages, the first taking place eight months after the Inauguration of the new President. One of Attorney General William French Smith's first major acts in 1981 was to revoke Justice Depart ment guidelines issued just a year before concerning the United States Supreme Court decision in Snepp v. United States. In 1980, the Justices had upheld, by a 6-3 vote, a C.I.A. requirement that Its employees agree to lifetime prepublication review by the agency of their writings to insure that no classified material was revealed. The Supreme Court concluded that someone subject to such an agreement who failed to submit his writings, even of unclassified information, breached the agreement. Frank Snepp 3d, a former C.I.A. analyst of North Vietnamese political affairs, was obliged to turn over to the Government all of his earnings from his book "Decent Interval."
The Supreme Court ruling contained broad language that cold he
interpreted to permit the same prepublication review procedure to be applied, as well, to the tens of thousands of non-C.I.A. employees who also have access to classified information. The Government had not sought that degree of power in the Snepp case. Nor is it clear that the Court intended that result.
Aware that in hands insensitive to First Amendment rights the Shepp opinion might be overextended, Attorney General Benjamin R. Civiletti issued a set of guidelines. They called for the Government to consider several alternative actions before rushing to Court to obtain injunctions against publication of unintentional and possibly meaningless disclosures of information. Among the factors to be weighed was whether the information already had been made widely available to the public and whether it had been properly classified in the first place.
In revoking the Civiletti guidelines, Attorney General Smith explained that his department sought to avoid "any confusion as to whether the United States will evenhandedly and strenuously pursue any violations of confidentiality obligations." However, no example was offered of any harm actually or even potentially caused by the Civiletti guidelines.
The second step taken by the Administration related to the classification system itself. The system had long been criticized for its absurd overinclusiveness. Between 1945 and 1963 alone, more than 500 million pages of documents had been classified. By 1973, 160 million pages of classified World War II documents still had not even been reviewed to determine if they should be made public. President Richard M. Nixon once observed that even the White House menu was classified.
A 1978 Executive Order signed by President Jimmy Carter attempted to limit the amount of information unnecessarily kept from the public. Government officials were ordered to consider the public's right to know in classifying information and were told to use the lowest level of clearance when in doubt. Classification of information was permitted only on the basis of "identifiable" potential damage to national security.
By an Executive Order signed on April 2, 1982, President Reagan reversed each of the critical components of the reforms adopted four years earlier. Government officials were no longer required even to consider the public's right to know when they classified information. When in doubt, Government officials were to classify material at the highest, not lowest, level of secrecy. The requirement that potential harm to national security be "identifiable" was abandoned.
The third step was taken on March 11, 1983. That day, a Presidential directive was issued, requiring a wide range of additional present and former Government officials to obtain clearance from the Government before publishing materal that might be classified. The Justice Department document detailing the directive cited the Snepp decision as the basis for the requirement.
The new Presidential order and the Aug. 25 "agreement" released by the Administration that implements it establish a category of information described as "sensitive compartmented information" (S.C.I.) -classified information that is "subject to special access and handling requirements."
Richard K. Willard, Deputy Assistant Attorney General, has defended the Presidential directive by saying that the "prepublication review program provides a reasonable method of preventing disclosures by those employees who have had access to the most sensitive kind of classified information."
on the Trating Panewmags Armiment avisining
A scene from "The Killing Ground," an ABC television documentary.
the directive, prepublication review will be required of all books (fiction or nonfiction), newspaper columns, magazine articles, letters to the editor, pamphlets and scholarly papers by officials with access to S.C.I. materials, so long as what is written describes activities that relate to S.C.I., classified information from intelligence reports, or "any information"-classified or not-"concerning intelligence activities, sources or methods."
Under the new policy, there is no need to submit for prepublication review material consisting "solely of personal views, opinions or judg ments" on topics such as "proposed legislation or foreign policy." But the Catch-22 is this: If the opinion even implies "any statement of fact" that falls within the range of review, then the material must be cleared by the Government before it is published. Since most opinions worth expressing about American defense or intelligence policies at least imply some proscribed facts, what the new requirement amounts to is a massive intrusion of the Government into the right of former officials to speak and of the public to listen.
Responding to the initial announcement in March, the Society of Professional Journalists, Sigma Delta Chi, called the directive an "ill-conceived proposal" that is "as troubling as it is sweeping.... Taken with previous actions by the Administration to stem the flow of Government Information to the people, the cumulative effect is a major retreat from this country's commitment to open government."
So breathtaking is the scope of the Presidential directive that if it had been in effect before this summer, many articles published in this magazine could not have been printed without prior governmental clearance. An article last year by Gen. David C. Jones, former chairman of the Joint Chiefs of Staff under Presidents Carter and Reagan, criticizing the current defense establishment, would have had to be cleared by the very establishment General Jones was denouncing. Thie vaar Jun articles-one by Earl C. Ravenal. a Defense Depart
ment official under President Johnson, urging withdrawal of American forces around the world, and the other by Leslie H. Gelb, the national-security correspondent for The New York Times who had served in the Johnson Administration, on arms control - criticized policy decisions made by those who would be reviewing them.
The effect of the directive is this: Those people most knowledgeable about subjects of overriding national concern will be least able to comment without the approval of those they wish to criticize.
HANGES IN LAW TO ASSURE THAT FAR MORE information will be kept from the public are only one aspect of the Reagan Administration's new era of secrecy. Another, far less known, has pitted the Administration against much of the country's university community.
From its first days, the Administration has been concerned that the fruits of American technology have been flowing too freely abroad. "Publication of certain information," complained Adm. Bobby R. Inman, then deputy director of the C.I.A., "could affect the national security in a harmful way." Deputy Secretary of Defense Frank C. Carlucci similarly warned that the Soviet Union was engaged in an "orchestrated effort" designed to gather the "technical information required to enhance its military posture."
The problem that has been vexing the Administration has not been one of classified information. To avoid governmental interference in the open exchange of views at universities, many leading universities have refused to engage in any classified research. The problem has been with material that is not classified at all.
Only a month after President Reagan took office, the president of Stanford University, Donald Kennedy, forwarded a letter to Secretary of State Alexander M. Haig Jr., Secretary of Defense Casper W. Weinberger and Secretary of Commerce Malcolm Baldrige. Written by Dr. Kennedy and the presidents of California Institute of Technology, Massachusetts Institute of Technology, Cornell University and the University of California, the letter expressed concern about Administration interpretation of two statutes.
The university presidents observed that the International Traffic in Arms Regulations and the Export Administration Regulations, which had "not until now been applied to traditional university activities," seemed about to be interpreted so as to inhibit or bar the exchange of unclassified information, the publication of such material, as well as its use in classroom lectures when foreign students were present. "Restricting the free flow of information among scientists and engineers," the university presidents urged, "would alter fundamentally the system that produced the scientific and technological lead that the Government is now trying to protect and leave us with nothing to protect in the very near future."
The Administration's response was made more than four months later in letters from James L. Buckley, Under Secretary of State for Security Assistance, Science and Technology, and Bohdan Denysyk, Deputy Assistant Secretary for Export Administration of the Department of Commerce. Both tried to assuage the concerns of the university presidents. Neither could fully succeed in doing so. Both letters assured the university presidents that no "new" construction of law was being imposed by the Administration, but the letters were so qualified that it remained unclear just what unclassified technical data were
deemed by the Administration to be too sensitive to be taught. Meaningful clarification has yet to be received.
What has been received by universities is a series of letters forwarded from the State and Commerce Departments suggesting that ordinary teaching of unclassified materials may be considered an "export" within the meaning of laws barring the exporting of secret technology. If so, the universities might be subject to civil or even critninal sanctions.
In 1981, for example, in a letter similar to that sent to universities around the nation, the then State Department exchanges officer, Keith Powell 2d, asked the University of Minnesota to restrict the academic activities of Qi Yulu, a Chinese exchange student, including denying him access, in the area of computer-software technology, "to unpublished or classified Government-funded work." Federal law-enforcement officials also visited the university to emphasize the need for the restrictions.
In a blistering response, the University of Minnesota's president, C. Peter Magrath, pointed out to Mr. Powell that since the university refused to accept classified Government research, scholars from China would not have access to any such material. "We have all kinds of unpublished Government-funded research all over the campus," Dr. Magrath went on, "your proposal would restrict him from access to all of it."
Mr. Powell had asked that the Government be informed prior to any visits of Qi Yulu to any industrial or research facilities. "I can only interpret this," wrote Dr. Magrath, "to give us the choice of confining him to the student union or contacting you several times a day about his campus itinerary.... Both in principle and in practice, the restrictions proposed in your letter are inappropriate for an American research university." The proposed restrictions, Dr. Magrath concluded, "can only have a chilling effect upon the academic enterprise...."