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to restrict the spread of information because we cannot guarantee its harmless effects, we will have much restricting to do.'

Some foreign scholars have not been able to come to this country because of Administration demands that limits be placed on their academic work while they were here. Cornell University, for example, could not invite a Hungarian scientist specializing in electronic circuitry to its campus after the Commerce Department stipulated that the scientist could only receive information in classroom situations (seminars or private discussions being forbidden) and that he could not be given prepublication copies of research papers. Similarly, when Stanford University was advised that a Russian scholar in roboticswho had been invited to this country by the National Academy of Sciences-could not have general access to university facilities (all of which were of unclassified research), the visit was canceled.

The Government's activities have not been limited to threatening university administrators with sanctions. A year ago, the Defense Department prevented the publication of about 100 unclassified scientific papers at an international symposium on optical engineering in San Diego. Only hours before the long-planned convention was to begin, the department sent a telegram warning that any presentation of "strategic" information might be a violation of law.

As reported in Science News magazine, the Government's censorship action appeared "to be unprecedented in [its] timing, in the large number of papers removed and in the scope of the papers' content." Defense Department officials felt their actions reflected "a greater sensitivity and a tightening up on what can be released in an international forum, particularly one that involves the Soviets."

But to the scientific community, the Administration's action was indefensible. In a letter to Secretary of Defense Weinberger, Victor S. Stone, president of the American Association of University Professors, expressed "profound concern" at the Defense Department move. "To restrain the dissemination of unclassified scientific knowledge," the letter said, "is to restrict academic freedom, which is of fundamental importance to our entire society."

The Department of Energy (D.O.E.) earlier this year weighed in with its own proposal that continued public dissemination of certain already published "unclassified but sensitive information" about nuclear facilities be prohibited. There can be no quarrel with its purpose -to frustrate the efforts of terrorist organizations to produce nuclear weapons or sabotage nuclear facilities. But the proposed rules are so vague (permitting the D.O.E. to withhold almost any information about nuclear facilities) and so unlikely to work (once information is public it is all but impossible to make it "secret" again) that an extraordinarily diverse array of groups- from state officials, universities and public-interest organizations to libraries, Indian tribes and anions-have questioned them, either in testimony given in Washington this summer or in letters to the D.O.E.

The Oil, Chemical and Atomic Workers International Union pointed out that the D.O.E. proposal would prevent "the public, workers and the families of workers from protecting themselves against unnecessary exposure and the effects of exposure to ionizing radiation." Similar objections relating to health and safety were voiced by environmental groups and on behalf of Indian tribes, whose reservations are near D.O.E. nuclear installations.

Perhaps the most telling response was that of Hugh E. DeWitt, a nuclear scientist at the Lawrence Livermore National Laboratory. The very notion of "Unclassified Controlled Nuclear Information," Dr. DeWitt wrote, would "fit neatly into the mad world described by George Orwell in his book '1984." The new category of information "simply

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SOME INFORMATION should be kept secret. The design of weapons, the intricacies of codes, confidences exchanged with foreign leaders and other governmental information that is vital to the security of this nation are and should remain classified. To that extent, the Reagan Administration's concern about the disclosure of information is not in itself objectionable. Nor is the Reagan Administration alone in taking actions that restrict freedom of information. The McCarran-Walter Act, for instance, was misused by other Administrations to bar speakers with disagreeable views from entering the country. In 1980, the Carter Administration blocked the entry into the United States of the prominent Italian playwright and actor Dario Fo because, as one State Department official phrased It, Mr. Fo "never had a good word to say" about the United States. (This year, the Reagan Administration, too, denied Mr. Fo an entry visa.)

The Intelligence Identities Protection Act, a law signed by President Reagan banning disclosure of the names of individuals involved in some way with the C.I.A., even if they had committed criminal acts under the laws of this country, had been drafted by the Carter Administration. Characterized by the University of Chicago law professor Philip B. Kurland as "the clearest violation of the First Amendment attempted by Congress in this era," It remains a stain on the constitutional records of both Administrations.

Nonetheless, the information policies of this Administration are radical and new. The across-the-board rejection of the values of information is unprecedented. So is the ease with (Continued on Page 28)

Ian Paisley, the Irish Protestant extremist, was one of those denied admission to the U.S. under the McCarran-Walter Act.

which those values have been


That all this has occurred to little public notice and only slight public concern stems in part from the personal affability of the President and the lack of malevolence of his aides. If anything, they are more likable and less cynical than is the Washington norm.


The Administration has been fortunate that each aspect of its policies has usually been considered separately. University administrators have understandably focused on threats to universities; labor unions have naturally concentrated threats to the health of their members; the press has too often limited its focus on its right to report the news. One of the few exceptions has been the American Civil Liberties Union, which has challenged the actions of the Administration both in the courts and in Congress.

Those actions raise almost endless legislative and constitutional issues. It is clear, for example, that the President may lawfully change the clas sification system. But Congress, if it chooses, may frus trate the Administration's efforts to narrow the scope of the Freedom of Information Act. Legislation proposed by Sena

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cost free; it is not an absolute good.' had she been admitted to the

resentative Robert W. Kastenmeier, Democrat of Wis consin, has proposed such legislation.

Still other decisions are within the control of the courts in their role as protectors of constitutional rights. Some aspects of the Reagan Administration's information policy seem highly unlikely to pass First Amendment muster. It is one thing to say that C.I.A. agents such as Frank Snepp must abide by a contract of silence imposed upon them in the absence of prior governmental clearance. It is quite another to say that the First Amendment could conceivably tolerate the sweeping new restrictions on freedom of expression of thousands of former Government officials not involved with the C.I.A.

tor David Durenberger, Re publican of Minnesota, and six other Senators would do so by providing that even properly Similarly, it seems most classified information will be unlikely that disclosing ununavailable to the public under classified material previF.0.1.A only when the discio ously made public can, consure of the information "could sistent with First Amendreasonably be expected to ment principles, be made illecause identifiable harm to na- gal. When those efforts are ditional security" and when "the rected at universities that need to protect the information have historically received the outweighs the public interest in special First Amendment disclosure." protection of academic free

In other areas, Congress dom to assure the free exmay, and probably should, change of ideas, the chances that any prosecution could amend the McCarran-Walter


of motive. Why has this AdThere remains the question

Act to delete the sweepingly succeed seem all the less likediscretionary language that has permitted the State De partment to deny American audiences the chance to hear and judge for themselves those foreign speakers the Administration deems objec tionable. When President Truman vetoed the bill in 1952, he warned that "seldom has a bill exhibited the distrust evidenced here for citizens and aliens alike." History has proved him right.

ministration gone so far, so fast? Why has it adopted new Government-wide policies limiting the dissemination of information without any showing that harm had been caused by policies previously in effect?

One answer may be easily rejected. It is not because Congress may, and prob- harmful leaks of information ably should, also amend the have increased in recent Foreign Agents Registration years. Deputy Assistant AtAct to delete the requirement torney General Willard, testiof labeling foreign films as tying before the House Sub"political propaganda" Rep committee on Civil Rights

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What, then, has prompted the Administration's exuberant efforts in this area? In part, it is because the Administration seems not to give much more than rhetorical credit to the concept that the public has a serious and continuing interest in being informed.

There is also a matter of tone. Many of the changes in the classification system are the product of anger by the intelligence community at the


Administration. 1.S.0.0. has explained that one reason the classification system was rewritten was because the rules previously in effect sounded too "apologet ic." Changes in language between that of the Carter Administration ("Information may not be considered for classification unless it concerns...") and that of the Reagan Administration ("In formation shall be considered for classification if it contains ...") were justified as the substitution of "positive" words for "negative" ones.

Beyond this, there lies something far deeper. The Administration is not only generally conservative; its policy is rooted in the concern that Soviet armed might vastly outstrips that of this country and immediately imperils us. With such a world view, claims of national se

country or what Qi Yulu may have learned on the University of Minnesota campus. We can hardly be sure that all unclassified information is harmless information. But if we are to restrict the spread of information because we cannot guarantee its harmless effects, we will have much restricting to do in the future.

We will also pay a high price for doing so. The "system that produced the scien tific and technological lead that the Government is now hoping to protect" has been a basically open one. By threatening the openness of the process by which ideas are freely exchanged, the Administration threatens national se curity itself.

It also threatens the nature of American society. If the Russian attack on the Korean jet reinforces the Administra

tion's view about Soviet behavior, it also accentuates the differences between the two countries. It is in the na ture of Soviet society to sup press information and to pusish those who reveal it. It is in the nature of our society to re veal information and to pun ish those the information indicates should be punished. The Reagan Administration's moves toward a less open society are contrary to our most deeply felt traditions

There are, as well, longerrange risks in the creation of a new and pervasive appara tus of government secrecy. In relatively placid times, the apparatus may seem merely bothersome to those 12 touches. In less stable times, it can too easily be used to suppress information essential to the self-government of the country.

In the end, our society is based upon the judgment that the free exchange of informa tion, except in those rare situations where openness will clearly lead to harm, is in the public interest. "Sunlight," Justice Louis D. Brandeis wrote, "is said to be the best of disinfectants; electric light the most efficient police man."


National Security a Decade After Watergate



ot so very long ago the decline and fall of Richard Nixon brought the problems of civil liberties and presidential politics into the living rooms of millions of Americans on an almost daily basis. White House enemies lists, political misuse of the IRS, CIA domestic spying, FBI burglaries, corruption of the judicial process, the waging of secret wars-month after month these and other disclosures poured forth from newspapers, television sets, and congressional hearing rooms until they forced a president out of office, sent some of his subordinates to jail, and confronted the country with a crisis of confidence in its national government.

But it was never entirely clear what the problem was. Was it Richard Nixon? That was how a majority of the House Judiciary Committee saw it, and they were speaking, no doubt, for a majority of the Congress. Was it a problem of the "imperial presidency" taking over powers of the other branches of government until its overreaching finally shook them out of their slumber? That is certainly the way a large body of scholarly opinion has looked at the crisis of the Nixon White House, and no doubt there is much truth to be found here.

But there was another lesson to be learned from the decline and fall of Richard Nixon, and it was all but forgotten as soon as the crisis of August 1974 was over and a new president was installed in the White House. Nixon himself hinted at one of the most difficult problems he had confronted as president when he described his concept of "national security" in a court deposition in Morton Halperin's wiretap lawsuit in 1976. Halperin had been the victim of a twenty-onemonth warrantless wiretap installed on his home telephone when he was a deputy to Henry Kissinger on the National Security Council staff in 1969. The Halperin wiretap-along with taps on sixteen other government officials and journalists-was part of a Nixon White House investigation of supposed leaks of


sensitive information. When Nixon was questioned about the wiretap program, he justified it as follows:

In America, we have the blessing of both security and freedom. What
we were trying to do with this [wiretap] program was to maintain se-
curity with the least possible infringement upon freedom. It is not
always possible to do so.... The use of electronic surveillance to
enable the United States to conduct a responsible foreign policy, to get
all the options and to get the best possible advice and to get the com-
munication with people abroad that we need to have-I believe that for
those fundamental reasons this kind of activity was not only right, but
from the standpoint of the security of this country I think it was legally

Nixon's view of national security had a profound impact on the inhabitants of the White House. In June 1974, for example, one of the minor dramas of Watergate was played out in a Los Angeles courtroom, when Egil Krogh, chief of the White House plumbers, was sentenced for perjuring himself in connection with the burglary of Daniel Ellsberg's psychiatrist. Before imposing sentence, the judge asked Mr. Krogh whether he wished to make any final statement for the record. He said:

I see now... the effect that the term "national security" had on my
judgment. The very words served to block critical analysis. It seemed
at least presumptuous if not unpatriotic to inquire into just what the
significance of national security was.... The discrediting of Dr. Ells-
berg, which today strikes me as repulsive and an inconceivable nation-
al security goal, at the time would have appeared a means to diminish
any influence he might have had in mobilizing opposition to the course
of ending the Vietnam War that had been set by the President. Free-
dom of the President to pursue his planned course was the ultimate na-
tional security objective.

In the eight years since Egil Krogh was sentenced as a White House plumber, the concept of "national security" has undergone considerable growth. After an initial period of post-Watergate reform, national security policies in recent years have generated steadily increasing pressures on traditional civil liberties. A current example is the Intelligence Identities Protection Act, which was signed into law by President Reagan on June 29, 1982. The Act makes it a crime to publish "any information that identifies an individual as a covert agent" of the CIA or FBI-even if the information is unclassified, is a matter of public record, or is derived entirely from public sources. The impetus for the legislation is the understandable desire to protect the lives of intelligence agents overseas, but as


drafted it almost certainly violates the First Amendment's guarantee of freedom of the press.

It is hoped that no president will use the Intelligence Identities Protection Act to try to curb freedom of the press, but the definitions of national security embodied in the Act are so broad that the First Amendment will be under constant pressure. Sponsors say that the statute is aimed at Covert Action Information Bulletin, a journal that has used public record information from newspapers and State Department publications to identify CIA agents. The new law could also silence a New York Times reporter who writes an article about agents who participate in the CIA's secret destabilization of Chile, or any other journalist or editor who makes a difficult decision to publish lawfully obtained information about intelligence agencies. Although the legislative history of the Act states that it is not intended to apply to investigative reporting, the express language is very broad. The statute does not require a prosecutor to show that a reporter intended to impair foreign intelligence activities by publishing an expose, but only that he had "reason to believe" that identifying an agent would do so. A warning by the CIA-or even general knowledge of the CIA's sensitivity about the subject of an article-may be enough to constitute the required "reason to believe."

In the face of these broad provisions, it is not surprising that many First Amendment scholars have concluded that the Intelligence Identities Protection Act is unconstitutional. For the first time in American history it would penalize the publication of information that is already public, and it would open the way for a new category of censorship. The authors of the new legislation have candidly stated that civil liberties must yield to superior claims of national security. Senator Richard Lugar, Republican of Indiana, put it very bluntly when he said in an interview with the New York Times, "I am willing to take risks with regard to all of the [constitutional] protections we have set up. ... I don't think on a continuum we are going to be able to have both an ongoing intelligence capability and a totality of civil rights protection." Apparently, Senator Lugar was not just speaking for himself, because on March 18, 1982, the Intelligence Identities bill passed the Senate by an overwhelming vote of 90-6. The Senate vote was only slightly more lopsided than the margin in the House of Representatives, which had passed the bill six months earlier, 354-56.


he Intelligence Identities Protection Act is symptomatic of a growing crisis for civil liberties in the area of national security.

The origins of this crisis are both obvious and obscure. They are obvious because it is a clear lesson of our history that international tension often creates a hostile environment for civil liberties. They are obscure because the causes of

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