STATEMENT OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000300380002-8
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 25
• Document Creation Date: December 21, 2016
• Document Release Date: August 22, 2008
• Sequence Number: 2
• Publication Date: February 29, 1984
• Content Type: REPORT

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THE REPORTERS CO E FOR FREEDOM OF THE PRESS
Legal Defense First Amendment FOI Service Center
Fund Clearinghouse with SPJ/SDX
Estab. 1970 Suite 300 ? 800-18th Street, N.W. ? Washington, D.C. 20006 ? Tel. [phone]
STATEMENT OF THE REPORTERS COMMITTEE
FOR FREEDOM OF THE PRESS
Delivered By
JACK C. LANDAU, ESQ., EXECUTIVE DIRECTOR, THE REPORTERS COMMITEE
and
ELAINE ENGLISH, ESQ., DIRECTOR, THE FOI SERVICE CENTER
Re: Federal Polygraph Limitation and
Anti-Censorship Act of 1984
With References To
The Public Information Censorship Policies of the Administration
Before
The Subcommittee on Civil Service
The Committee on Post Office and Civil Service
U.S. House of Representatives
Wednesday, Feb. 29, 1984 Washington, D.C.
Steering Committee
Max Robinson
Diane Camper
AUSTIN, TEXAS
MINNEAPOLIS
WASHINGTON
ABC News
*New York Times
Sam Kinch
Austin Wehrwein
David Beckwith
Christine Russell
John Chancellor
Dallas Morning News
*Minneapolis Star
Time Magazine
Washington Post
NBC News
DENVER
PORTLAND, ORE.
Alfred Friendly, Sr.
Howard K. Smith
Walter Cronkite
Jack Taylor
Floyd McKay
Freelance
Freelance
CBS News
* Denver Post
KGWTV
Sara Fritz
Lesley Stahl
Nat Hentoff
JACKSON, MISS.
ASHEVILLE, N.C.
Los Angeles Times
*CBS News
The New Yorker
William F. Minor
Catherine Mitchell
Hays Gorey
Philip Taubman
Anthony Lukas
Columnist
'University of
*Time Magazine
* New York Times
Freelance
Factual Reporting
North Carolina
Morton Kondracke
Bob Woodward
Service
at Asheville
The New Republic
*Washington Post
Dan Rather
LOS ANGELES
Jack C. Landau
NEW YORK
CBS News
William Farr
SPJISDX
'Newhouse
Tom Brokaw
David Rosenbaum
Los Angeles Times
(Ex officio)
Newspapers
NBC News
New York Times
MIAMI
Jack Nelson
Earl Caldwell
Barbara waiters
Gene Miller
Los Angeles Times
New York News
*ABC News
Miami Herald
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SUMMARY OF REPORTERS COMMITTEE TESTIMONY BEFORE
SUBCOMMITTEE ON CIVIL SERVICE IN RE REAGAN PRIOR RESTRAINT,
POLYGRAPH AND PRESS MONITORING DIRECTIVE:
A: Reagan Directive Is Part of "Comprehensive And
Consistent" Campaign To Impose "Unprecedented" Peacetime
Censorship On Government Information About Government Actions And
Policy-Making: White House Policies Are "Most Serious Threat To
Government Accountability Since Censorship" of World War II.
B: Reporters Committee's Compendium: 30 Of The Most Serious
Suppressions of Government Information: (Part I: Chronologically;
Part II: By Catagory; With Appendix On Each Action Listed).
II OVERALL ANALYSIS OF THE THREE-PART PRESIDENTIAL DIRECTIVE
AS INITIALLY ENFORCED:
A: 1) Pre-Clearance Contract For Books and 2) Polygraph
Tests For News Leaks and 3) Requirement That Agencies Monitor All
Contacts With The Press Is An "Inter-Linking Three-Part Prior
Restraint System" To Suppress Government Information Without Any
Showing Of Harm To The Government.
B: Directive Establishes An "Official Secrets Act" Based On
The "Licensing" And "Sedition" Theory.
A: Congress: Has Partially Suspended The Directive Until
April 15;
No Enforcement Of Pre-Clearance For Books, etc. For Former
Employees: Still In Force For Present Employees;
No Polygraphs For Defense Department Employees: Still In
Force For All Other Agencies;
Press Monitoring Requirement Still In Force.
B: The President: Has Partially "Suspended" Directive: May
Be Reimposed At Any Time; Suspension In Effect:
Stops Pre-Clearance Contracts For Books By Employees With
Mid-Level Security Access: Allows Contract For Employees With
Access To Classified Or Classifiable Information;
Stops Polygraph For Entire Government;
Allows Press Monitoring System To Be Continued.
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Based On Unprecedented and Unconstitutional Theory That
Government Owns Government Information And May License Its Use:
Same Argument Used By Nixon Administration In Original S-1, In
Pentagon Papers And In Reporters Committee v. Nixon.
V THE ADMINISTRATION DEFENSE OF THE 3-PART DIRECTIVE:
THE WILLARD REPORT:
Deputy Attorney General Willard In His Report Supported The
Necessity To Actively Discourage And Intimidate Government
Employees Who Wish To Write Books, etc. Without Government
Approval. Supported Directive As Major Step Toward Goal "Of A
Fundmamental Change In" Traditional "Attitudes" Of Government
Employees Writing Unapproved Books And Articles Based On Their
Government Experience.
VI THE BROOKS BILL: A BALANCED APPROACH:
REPORTERS COMMITTEE BELIEVES THAT SOME STRICTER SAFEGUARDS ARE
REQUIRED BECAUSE ADMINISTRATION COMMITMENT TO SUPPRESSING
GOVERNMENT INFORMATION WILL CAUSE IT TO TRY TO AVOID OR ESCAPE FROM
THE LIMITATIONS IN THE BILL:
A: Reporters Committee Supports Brooks Bill Prohibition On
Any Pre-Clearance Contracts (Except CIA);
Reporters Committee Believes Administration Will Try To
Reimpose Pre-Clearance Procedure By Using Snepp v. U.S. Theory
That Government Employees Are Trustees Of Government Information
And May Not Release It Without Permission (Regardless Of Whether
There Is A Contract);
Reporters Committee Suggests That Bill Be Amended To Bar
Any Pre-Clearance Regardless of What Legal Tactic Is Devised.
B: Reporters Committee Prefers That Polygraph Tests For
Government Employees Suspected Of Leaking Information To Press Be
Entirely Prohibited: Says Existing Criminal Federal Law Is
Adequate For Improper Release Of Classified Information;
If Not, Then Committee Suggests That Brooks Bill Require A
Lawyer To Be Present Because of Command Control Coercion By
Government Superiors And Because Of Self-Incrimination Dangers.
VII BROOKS BILL DOES NOT ADDRESS PRESIDENTIAL DIRECTIVE
REQUIREMENT THAT ALL AGENCIES SET UP SYSTEM TO MONITOR ALL EMPLOYEE
CONTACTS WITH THE PRESS (But Not Other Groups):
A: Reporters Committee Urges That Bill Outlaw Directive
Requirement That All Agencies Must Set Up System To Monitor Press
Contacts With Employees (Although Not Employee Contacts With Any
Other Groups).
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B: Committee Says That Monitoring Requirement For Press
Contacts Violates First Amendment, Equal Protection And The
Prohibition On Monitoring First Amendment Activities In The
Federal Privacy Act.
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We would like to thank Chairwoman Schroeder for inviting us to
testify. We appreciate this forum to address the important issues
and legislation pending before this Subcommittee.
My name is Jack C. Landau. I am a working news reporter and
attorney. I am employed as the Supreme Court correspondent of The
Newhouse Newspapers. I also serve as the Executive Director of
The Reporters Committee for Freedom of the Press.
I am joined by Elaine English, Esq., Director of the Freedom
of Information Service Center, a special project of The Reporters
Committee.*/
The Reporters Committee was established in 1970 by working
news editors and reporters. The Committee is dedicated to
defending the First Amendment and freedom of information rights of
the print and broadcast media to gather and publish news,
particularly news relating to local, state and national government.
The Reporters Committee is a legal defense and resource
center, which last year answered more than 3,500 telephone and
letter inquiries from print and broadcast reporters, editors, news
organizations and media attorneys for legal aid and information.
We have litigated a number of important issues involving prior
restraint and news gathering threats of the public in cases such
as The Reporters Committee v. Nixon, 433 U.S. 425 (1977)
(preventing former President Nixon from removing 42 million White
House documents and tapes from public access); Reporters Committee
v. American Telephone and Telegraph Co., Inc., 593 F.2d 1030 (D.C.
Cir. 1978), cert. denied, 440 U.S. 949 (1979) (Justice Department
seizure of telephone records to trace reporter contacts with
government sources); Zurcher v. Stanford Daily, 436 U.S. 547
(1978) (as amicus, we argued that the press should not be subject
to no-notice police searches of the newsroom).
We also have testified on these issues before a number of
Congressional committees and subcommittees over the past 14
years. In many ways, the Official Secret Act effort of the
Administration in the current Directive reminds us very much of a
similar effort by the Nixon Administration starting in 1973 with
the famous S-1.
We did extensive historical and constitutional research and
provided testimony on S-1. Fortunately, the Congress rebuffed the
President's efforts and we hope that this Congress will do the
same to President Reagan's efforts.
* We would like to express our appreciation to Suzanne Michel,
Gail Garey, Pat Doran, and Alan Town, law and journalism student
interns at the Reporters Committee, for their research assistance.
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Numerous obstacles block the First Amendment and statutory
rights of the press today more than ever. Certainly, the most
serious overall threat is the Administration's consistent and
comprehensive campaign to limit public access to government
information.
We have prepared a chart for this Subcommittee documenting 30
of the most offensive actions taken by the Administration. (See
Appendix A) Beginning in 1981, the Administration has used
executive orders, executive regulations, public policy statements,
efforts in Congress and before the courts in this wide-ranging
plan to impose the broadest censorship on government information
that we have known since the beginning of World War II.
The following examples serve to demonstrate the
Administration's attitude toward the public's right to know:
-- The Administration proposed that the CIA be totally exempt
from the Freedom of Information Act, allowing information that
shows the Agency's violations of the law to be suppressed.
-- The Department of Justice under Attorney General Smith
supported a law allowing surprise raids of newsrooms if done in
order to trace national security leaks in the press.
-- The Administration denied the press access to the American
invasion of Grenada and allowed the public only Pentagon-approved
film footage of the invasion's first 48 hours in what one
Washington Post editorial writer described as "the first offical
war in the history of the United States, produced, filmed and
reported by the Pentagon, under the sanctions of the President."
-- The Administration's executive order on classification
(E.O. 12356) is the most restrictive in history. Under its
provisions, the public's right to know is no longer considered
when documents are classified. The order states the designations
can be imposed indefinitely.
The Presidential Directive on pre-clearance is a direct and we
believe unconstitutional prior restraint whose suppression power
is doubly-reinforced by the polygraph and press monitoring
provisions of the Directive.
This Directive must be added to the Administation's already
sad record which includes efforts to suppress information about
consumer fraud, drugs, sex and race discrimination, law
enforcement, defense policy planning, military planning and
foreign affairs.
It is a sorry record to those of us who believe in the
accountability of government and it will probably get worse when,
as most political observers state, Mr. Reagan wins a second term.
Buoyed by public approval at the polls, Mr. Reagan may well
feel -- as he apparently felt about Grenada -- that the rights of
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the public and the press under the First Amendment are prescribed
by some kind of political popularity test rather than by the
principles we all should believe in.
II ANALYSIS OF THE PRESIDENTIAL DIRECTIVE AS ISSUED:
We begin our analysis by looking at Presidential Directive No.
84. It establishes an inter-linking three-part prior restraint
system to suppress government information without any showing that
disclosure of the information poses any danger to national
security.
The Directive is a classic Official Secrets Act based on the
licensing and sedition theory we rejected from the British Crown.
It automatically suppresses all information -- regardless of
content and without any standard for review -- obtained during the
course of employment with classified facts or facts which might be
classified in the future. It does this by the ancient device of
giving a license to publish by first demanding the right to
pre-clear books and articles by government employees.
It supplements its supression of written information by
establishing a coercive suppresion on verbal contacts in requiring
polygraph tests to discover leaks.
And then, it has further attempted to stop verbal and written
information from reaching the press by requiring all agencies to
establish procedures to monitor government employees' contacts
with the press, but not contacts with other groups, such as
political organizations, religious interests, etc.
. The present legal status of the Directive is somewhat
uncertain. Congress has suspended the pre-clearance provisions,
but for only those employees who leave the government. It has
suspended the polygraph provisions but only for Defense Department
employees. It has not suspended the press monitoring provision
which applies to all agencies.
This means that, under the Congressional action, pre-clearance
is required for all current government employees who write books;
that polygraph tests can be required of all employees except the
Defense Department; and that the policy of establishing a system
to monitor all contacts between government employees and the press
is still in effect for all agencies.
The Administration has announced that it has "suspended"
enforcement of the polygraph provision and the pre-clearance
provision as it relates to employees with access to Secret
Compartmented Information, a mid-level security status.
But it has not suspended the provision requiring pre-clearance of
employees who have access to "classified" information (as opposed
to the higher SCI).
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Reluctantly, and in a somewhat slap-legal manner, President
Reagan finally appears to have realized -- if under political
duress -- that he cannot unilaterally attempt to censor government
information that has been available in one form or another for
years. Even so, he has not revoked, withdrawn or otherwise
disavowed the suspended measures. And as far as we know, they
could be re-imposed tomorrow were it not for the partial ban
imposed by Congress until April 15, 1984.
One of the major problems we see with the Directive is its
unprecedented theory that all government information belongs to
the government, not to the public. This idea directly contravenes
the underlying purpose of the First Amendment and was rejected by
the Supreme Court in the Nixon and the Pentagon papers cases.
Government ownership of its information has been repeatedly
rejected since the Supreme Court's decision of 1834. Our concept
is that the public owns the information. The open question of
course is whether the public can receive it, and if so, under what
circumstances.
President Reagan and his spokesmen want to change this
tradition. If the government owns its information, then -- as in
the Directive -- the government can automatically suppress it
without any showing of harm to any governmental interest.
This is an unfounded effort to minimize public debate and to
maximize political manipulation of public sentiment through an
attempt to monopolize sources of public information on virtually
every important political issue.
The Administration's major public effort to justify this
Directive is the report of Deputy Attorney General Willard, which
was based on what we know was the unbiased input of government
agencies.
The report states that the widespread tradition of public
employees writing books and articles about their government
experiences -- analyzing, critiquing and taking issue with
government policy -- must be reversed by coercion and built-in
intimidation.
The focus is no longer on disclosure and accountability. It
is on suppression of information and secrecy. This is blatantly
stated in the contracts distributed under the Directive: employees
are required to state that "all information to which I may obtain
access by signing this Agreement is now and will forever remain
the property of the United States Government."
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We know that this illegal attempt to assert ownership of
government information violates the copyright provision of Article
I of the Constitution, the Copyright Acts of 1909 and 1976, and
the opinions of the Supreme Court.
The Directive also illegally requires at least 2.5 million
government employees who have access to "classifiable" information
to surrender their First Amendment rights as a condition of
employment. The Supreme Court has stated that prior restraints
are permissible only if the government can show that a "clear and
present danger" exists to the national security.
Presidential Directive No. 84 automatically imposes massive
and standardless censorship on speech for prospective, existing
and former employees based on only the unsubstantiated claim that
it serves "national security" interests. Such claims are far
below rigid Constitutional rules prohibiting both direct and
indirect prior restraint.
The present Administration has frequently raised the false
flag of "national security" as justification for attempts to
stifle the flow of information. But the Administration has failed
to give it any definition of national security or to produce any
facts in public to justify this repeated alarums.
As an example of how this term has been used, in January 1982,
the Administration adopted a policy to protect national security
that required clearance of all interviews with top officials by
the "national media." According to press reports, this was in
response to leaks of three stories:
1) the total defense budget for the next fiscal year -- a
major political issue due to cutbacks in many other government
programs.
2) the decision by the Administration to reduce sales of
warplanes to Taiwan -- a fact so secret that the manufacturer
was, according to press reports, already trying to sell the
planes back to the Pentagon.
3) the decision by the President to establish tax-free, urban
redevelopment zones.
Such disclosures were of great political importance and
perhaps did cause some "embarrassment" to the Administration, but
they did not endanger our "national security."
We strongly support the underlying rationale and the specific
provisions of this bill, House Resolution 4681, the Federal
Polygraph Limitation and Anti-Censorship Act of 1984. We think it
is carefully drafted and provides a sensible balancing of real
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national security interests with the need for government
accountability.
Most importantly, Rep. Brooks has refused to swallow
willy-nilly every vague claim of damage to the national security
and has attempted to impose conventional and strict protections
for the First Amendment interests of the government employees, the
public and the press.
Under normal circumstances, if we had a President such as
Presidents Ford and Carter who supported public access to
information most of the time, we would be completely satisfied
with Rep. Brooks' approach.
However, we have an Administration which we think will use
every means possible and every devious tactic to attempt to escape
from the good faith limitations on censorship imposed by the
Brooks' Bill.
Therefore, we would suggest that certain provisions of the
bill be strengthened to guard against the 3 year record of bad
faith which this Administration has shown in its dealings with
public information. We are certain the Administration will
attempt to re-impose what the bill is designed to prevent unless a
few of these more inviting loopholes are closed.
We agree with the findings in the introduction of this bill
that the Administration's censorship policy under the Directive is
"intentional manipulation" of government information for "partisan
purposes." To us, this is a persuasive overture to the main
provisions of the bill.
A: PRE-PUBLICATION REVIEW: CONGRESS SHOULD ALSO BAN REVIEW UNDER
THE "TRUSTEE" THEORY THAT THE GOVERNMENT OWNS INFORMATION:
The Brooks Bill would appear to completely eliminate the right
of the government in all circumstances to require pre-publication
review of writings and speeches of present and former government
employees. It rescinds all existing contracts and prohibits
future requirements of any new government contracts for
pre-publication clearance.
Normally, we should be satisfied with this plenary
prohibition. The Reagan Administration has read the Snepp case as
imposing on all government employees -- not just CIA employees --
a constructive trust not to disclose any confidential information
without government permission.
This means that the Reagan Administration -- blocked from
requiring pre-publication clearance by contract -- will almost
certainly try to impose clearance by reverting to the Snepp theory.
For example, it can use Snepp, it has said, to claim that
employees in the Department of Agriculture, the Labor Department,
State or Defense, etc. must obtain permission from the government
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to exercise their First Amendment rights -- not for reasons of
national security -- but because the information is government
property held in trust by the government employee as in Snepp.
The Administration claims that the Supreme Court hardly
mentioned the contract with the CIA; and really held that Snepp
had gained access to government information and as a trustee he
violated his trust not to release it without the government's
approval. This interpretation can be applied to any government
employee in any agency, creating an enforceable duty to submit to
pre-publication review. Snepp v. United States, 444 U.S. 507
(1980).
We would therefore urge Congress to explicitly reject this
broad reading of Snepp that claims all government employees with
access to classified or unclassified information have a duty to
submit to pre-clearance review because they are trustees.
In addition to prohibiting pre-clearance contracts, the bill
should be amended to eliminate the trusteeship suppression claim.
For example, it could state that "no government employee may be
required to submit any speeches or writing, etc. under any policy,
rule or regulation of the Executive branch," excepting of course
the CIA and NSA.
If not, I can almost guarantee that within a year the
Administration will be claiming that any release of uncleared
government information violates the employees' trust to the
government and -- with or without a contract -- the employee must
obtain government approval for release of the information.
B: USE OF POLYGRAPH TESTS IN LEAK INVESTIGATIONS: CONGRESS SHOULD
IMPOSE SELF-INCRIMINATION PROTECTIONS BECAUSE OF THE BUILT-IN
"COMMAND INFLUENCE" OF A GOVERNMENT SUPERIOR OVER HIS SUBORDINATE:
The Brooks Bill attempts to restrict the coercive use of
polygraph tests in investigating news leaks by barring the
government from asking an employee to take a polygraph unless the
employee is the focus of the investigation.
Under the bill, if an employee is a suspect and refuses to
take the polygraph test, the agency cannot impose punitive
sanctions. We feel that this still leaves a number of problems
unaddressed, once again because of the Administration's commitment
to administer polygraphs test if at all possible.
HR 4681 limits the circumstances under which an employee could
be asked to submit to a polygraph test to those specific
investigations involving criminal conduct or unauthorized
disclosure of classified information.
But we think it does leave some loopholes which should be
closed. First of all, government use of polygraphs on public
servants always raises the spectre of secret economic coercion or
"command control."
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We can assume that many employees will "voluntarily" submit to
a polygraph because they fear their superiors will always find a
way to circumvent the Brooks Bill prohibition against job
sanctions.
In addition, disclosure of classified information without
permission violates the federal criminal statutes.
If the Administration was sincerely trying to stop unlawful
disclosures of secret information, they would not have to look
beyond existing criminal statutes.
The Espionage Act, 18 U.S.C. Sec. 793, gives the
Administration broad powers to investigate and prosecute
unauthorized disclosure of government secrets. Although the
Justice Department has stated that prosecutions under this
provision are difficult, particularly under sections (a)-(e),
which require the government to show disclosure was made with the
intent to injure the United States or to "advantage" a foreign
nation, there is a section that does not require proof-of-intent.
Section (f) of the Espionage Act does not require the
government to show that the disclosure was made with the intent to
cause injury to the United States. This section merely requires a
showing that the employee had been entrusted with "information
relating to the national defense . . .," that the employee had
"knowledge" that the disclosure was to an unauthorized person, and
finally, that the employee failed to report the disclosure to his
or her superior. This law, in fact, is broader than the
Presidential Directive because it covers more than classified
information. It applies to all information relating to the
"national defense," and therefore, should be adequate to protect
against leaks which the Directive sought to limit. This law
carries a possible penalty of 10 years imprisonment and a $10,000
fine.
The presence of this statute is important to your
consideration of this bill. It provides the authority under which
a law enforcement agency could conduct its own investigation of
leaks and prosecute any wrongdoers, thus obviating the need for
polygraphs outside of their customary use.
Therefore, the real danger of command control coercion to take
the test combined with the self-incrimination dangers under the
federal criminal code convinces us that the best alternative would
be to completely prohibit any government agency from giving a
polygraph test to trace the source of information -- except if
done by the FBI or a similar law enforcement agency conductiing a
valid criminal investigation.
For 200 years, we have trusted our government employees and
treated them with personal dignity. They have responded by being,
in the main, overwhelmingly loyal and devoted to their jobs.
Considering the millions of secrets held in our vast government,
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we think our government employees are to be commended for their
discretion.
It is true that occasionally there are leaks. But many of
these leaks have greatly benefited public understanding and
awareness of otherwise secret government policies and -- despite
repeated whining about national security from all presidents --
our national security remains perhaps even stronger for these
disclosures. As before, we should leave these decisions to our
citizens who work in our government.
If they violate the law, then they can be prosecuted. If they
violate department regulations, they can be punished.
However, if banning these pseudo-scientific but personally
intrusive polygraph tests is politically impractical in Congress,
then at the least, we would suggest one further protection to the
Brooks Bill.
We would ask this Subcommittee to consider stricter standards
for even requesting an employee to take a polygraph test. At the
very least the government should be able to demonstrate probable
cause, be required to give appropriate warnings and allow the
employee to have an attorney present.
At a minimum, the conventional protections against command
control coercion and of a warning and an attorney should be
required.
VII. AGENCY "MONITORING" OF ALL EMPLOYEE CONTACTS WITH THE PRESS:
THIS OVERLOOKED PROVISION SHOULD BE COMPLETELY PROHIBITED:
There is one feature of the Directive that has received little
attention thus far and I would like to address that matter in the
remainder of this statement.
The Directive also requires that agencies develop procedures
for monitoring all contacts between employees and the press. It
does not require any monitoring of employee contacts with
political action groups, political parties, environmental and
consumer organizations, religious interests -- only the press.
This provision sends a message to all employees that contacts with
the press are to be discouraged as opposed to contact with every
other type of citizen.
Clearly, the Administration is attempting to impose, without
any justification, a heavier burden on the news media than on any
other group. The Directive does not impose this restriction on
other segments of society and clearly denies equal protection of
the law. It imposes burdens on the First Amendment rights of the
press, as opposed to First Amendment rights of non-press groups.
If the Directive's goal is to stop leaks, certainly employee
contact with the Democratic or Republican National Committees
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poses as great a danger of unauthorized use of government
information as does employee contacts with a news reporter.
This provision is unconstitutional and dangerous. It assumes
that we reporters have some kind of taint not carried by other
members of the public. It is an insult to anyone concerned with
free expression.
Therefore, we would urge this Subcommittee to amend the Brooks
Bill and to prohibit the government from monitoring employee
contacts with the press. We might point out, by the way, that the
Privacy Act specifically prohibits the government from keeping any
record of a citizen's activities if it involves the First
Amendment. So this monitoring provision -- in additional to being
unconstitutional discrimination against the press -- also violates
the Privacy Act.
It can hardly be argued that any conversation between a
reporter and a government employee automatically endangers the
nation. But an executive order making such a conversation illegal
goes a long way in showing the attitude of Mr. Reagan toward the
press and the public's right to information about its government.
CONCLUSION
We are encouraged that Congress is considering legislation
that would oppose the Administration's campaign to further
suppress the flow of public information. The Administration must
be put on notice that government information is not "their
information." It is everyone's government and everyone's
information.
HR 4681, with the suggestions we have made, would provide this
needed protection. It would also hopefully send a strong message
to President Reagan, Attorney General Designate Meese and those
other great constitutional scholars in the White House that the
Executive Branch must -- unfortunately -- be coerced by Congress
into obeying the Consitution. We would have preferred respect for
our values to come spontaneously from the President.
Unfortunately, that is not the case now -- and probably will not
be the case for a number of years to come.
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ACTIONS TAKEN BY THE REAGAN ADMINISTRATION
TO RESTRICT PUBLIC ACCESS TO GOVERNMENT INFORMATION
SECTION ONE - Index of Actions by
Category of Restriction
SECTION TWO - Index of Same Actions By
Chronological Order
SECTION THREE - Memo on Particular Actions
Keyed to Numbers in Secs. 1 & 2
Prepared by
The Reporters Committee for Freedom of the Press
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DATE DATE CATEGORY
01 03 81 Mar 81 Editorial Privacy
(Nat/ Security)
02 05 81 May 81 Editorial Privacy
(Nat/ Security)
03 08 81 Aug 81 Editorial Privacy
(Nat/ Security)
04 12 81 Dec 81 Editorial Privacy
(Nat/ Security)
05 03 83 Mar 83 Editorial Privacy
(Natl Security)
06 03 83 Mar 83 Editorial Privacy
(Crime-Disorders)
07 04 81 Apr 81 Govt Info/Access
(All Info)
08 05 81 May 81 Govt Info/Access
(All Info)
09, 01 83 Jan 83 Govt Info/Access
(All Info)
1.0 01 82 Jan 82 Govt Info/Access
(Nat/ Security)
DESCRIPTION
Defense Dept. says employees with access to national security information must take
lie detector tests to aid in effort to trace news leaks to the press.
Atty. Gen. Wm. French Smith supports law allowing surprise raids of newsrooms if done in
order to trace national security leaks in the press.
CIA will brief press going abroad only if reporters will agree ahead of time to collect
information for the Agency (J. Weighart story in NY News)
Executive order allows CIA and FBI to monitor and infiltrate press and academic groups on
on belief that necessary for national security. Reverses Carter Admin. policy.
Require government employees with access to classified nat'l security information to take
lie detector tests to trace source of news leaks to press.
Allows FBI to monitor and infiltrate press and academic institutions on non-probable cause
of suspicion of involvement in or information about domestic crime or disorders
Administration cuts way back on government studies and statistical reports in name of
economy: closes down most GPO bookstores.
Administration cuts way back on funds for National Archives. Result is that much government
information will be supressed because no arhvists to process it.
White House orders preclearance for all but a few designated officials & staffers to talk
to press. **We are told this has been highly effective.
White House orders pre-clearance of all interviews with "national media' on national
security issues: Later backs down.
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DATE DATE CATEGORY
DESCRIPTION
11
08 82 Aug 82 Govt Info/FOI Act
(Natl Security)
Executive Order suppresses much historical information available under FOI Act: reverses
tradition of 20 years against over-classification of forei
n
olic
d d
i
f
f
g
p
y an
n
o
e
ense
12
03 83 Mar 83 Govt Info/FOI Act
(Natl Security)
Seeks to exempt Secret Service from FOI Act for national security reasons. **Note
that Service licenses press coverage of White House.
13
05 82 Apr 82 Govt Info/FOI Act
(Nat/ Security)
Wins U.S. Supreme Court decision that identities of Iranian officials -- who are citizens
of the U.S. can be suppressed for national security and privac
reaso
s
W
h P
t
y
.(
n
as
os
case)
14
06 82 Jun 82 Govt Info/FOI Act
(Natl'Security)
Asks for total exemption from FOI Act for CIA
15
04 81 Apr 81 Govt Info/FOI Act
(All Info)
Atty Gen. Wm. French Smith issues new FOIA rules encouraging suppression of government
information: New Rules reverse Carter Admin. rules encouraging FOIA openness.
16
02 83 Feb 83 Govt Info/FOI Act
(All Info)
Justice Department issues new rules designed to make it more expensive for press and
scholars to use FOI Act by insisting on no fee waivers as provided by FOI Act
17
10 81 Oct 81 Govt Info/FOI Legis Supports bill to exempt much government regulatory information from FOI Act if it relates
(Consumer/Envrnt) to any competitive information: i.e. sex/race discrimination: pollution: consumer fraud
18
10 81 Oct 81 Govt Info/F0I Legis Supports bill to exempt details of government legal settlements even if shows law
(Legal Settle'ts) violation
19
10 81 Oct 81 Govt Info/FOI Legis Supports bill to exempt much law enforcment info from FOI Act if it relates to organized
(Law Enforcement)
crime, counter-intelligence and domestic disorders even if it shows law violation
30
09 83 Sep 83 Govt Info/Def Dept. Defense Dept. supports MX appropriations bill which includes provision that would seal all
(Law Enforcement) information on military air accidents from press and public from air safety investigation.
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DATE DATE CATEGORY
20 05 81 May 81 Prior Restraint
(Natl Security)
21 06 81 Jun 81 Prior Restraint
(Nat/ Security)
22 08 81 Aug 81 Prior Restraint
(Natl Security)
23 08 81 Aug 81 Prior Restraint
(Natl-Security)
24 01 82 Jan 82 Prior Restraint
(Nat/ Security)
25 06 82 Jun 82 Prior Restraint
(Natl Security)
26 12 82 Dec 82 Prior Restraint
(Natl Security)
27 02 83 Feb 83 Prior Restraint
(Nat/ Security)
28 03 83 Mar 83 Prior Restaint
(Nall security)
29 10 81 Oct 81 Prior Restraint
(Govt Copyright)
31 25 83 Oct 83 Prior Restraint
(Nati Security)
DESCRIPTION
Justice Dept. says it will enforce pre-publication clearance contract signed by CIA agents
requiring approval. for all writing inincluding non-defense. Follows Carter Admin. policy
Justice Dept. wins U.S. Supreme Court case cancelling passports of U.S. critics abroad
who criticize American foreign policy. (Philip Agree case).
CBS Newsman Wm. Worthy threatened with espionage prosecution for importing books sold in
Iran: Books are shredded U.S. cables from embassy: Case settled in March 1983
U.S. holds up books and newspapers from Cuba.
CIA official tells scientists to voluntarily submit research for CIA prior review:
Supports most punitive version of Agent Identities Bill. Allows prosecution for naming CIA
agent without having to show any damage to national security.
Defense Dept. says reporters will have to sign pre-publication secrecy pledge in order to
on U.S.S.R. military hardware.
Justice Dept. orders Canadian films to register, carry disclaimer and list with government
names of American groups seeking to see film. Ignores 1st Amt exemption in Act
Requires any government employees with access to classified nat'l security information to
sign pre-publication clearance agreements for books and articles, etc.
Establish for first time royalty fees for using government information. Says it applies
to 'technical' info. Example used was training manuals. Will cover vast amounts of info.
Excludes American reporters from covering Granadian invasion while allowing foreign reporters;-
brought in own DOD news service;; detained 3 U.S. reporters and threatened to shoot others.
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DATE DATE CATEGORY
01 03 81 Mar 81 Editorial Privacy
(Nat/ Security)
07 04 81 Apr 81 Govt Info/Access
(All Info)
15 04 81 Apr 81 Govt Info/FCI Act
(All Info)
02 05 81 May 81 Editorial Privacy
(Natl Security)
08 05 81 May 81 Govt Info/Access
(All Info)
20 05 81 May 81 Prior Restraint
(Natl Security)
21 06 81 Jun 81 Prior Restraint
(Nat/ Security)
03 08 81 Aug 81 Editorial Privacy
(Natl Security)
i
22 08 81 Aug 81 Prior Restraint
(Natl Security)
DESCRIPTION
Defense Dept. says employees with access to national security information must take
lie detector tests to aid in effort to trace news leaks to the press.
Administration cuts way back on government studies and statistical reports in name of
economy: closes down most GPO bookstores.
Atty Gen. Wm. French Smith issues new FOIA rules encouraging suppression of government
information: New Rules reverse Carter Admin. rules encouraging FOIA openness.
Atty. Gen. Wm. French Smith supports law allowing surprise raids of newsrooms if done in
order to trace national security leaks in the press.
Administration cuts way back on funds for National Archives. Result is that much government
information will be supressed because no arhvists to process it.
Justice Dept. says it will enforce pre-publication clearance contract signed by CIA agents
requiring approval for all writing inincluding non-defense. Follows Carter Admin. policy
Justice Dept. wins U.S. Supreme Court case cancelling passports of U.S. critics abroad
who criticize American foreign policy. (Philip Agree case).
CIA will brief press going abroad only if reporters will agree ahead of time to collect
information for the Agency (J. Weighart story in NY News)
CBS Newsman Wm. Worthy threatened with espionage prosecution for importing books sold in
Iran: Books are shredded U.S. cables from embassy: Case settled in March 1983
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DATE DATE CATEGORY
DESCRIPTION
23
'08 81 Aug 81 Prior Restraint
(Nat/ Security)
U.S. holds up books and newspapers from Cuba.
17
10 81 Oct 81 Govt info/F0I Legis Supports bill to exempt much government regulatory information from POI Act if it relates
(Oonsumer/Envrnt) to any competitive information: i.e. sex/race discrimination: pollution: consumer fraud
18
10 81 Oct 81 Govt Info/FOI Legis supports bill to exempt details of government legal settlements even if shows law
(Legal Settle'ts) violation
19
10 81 Oct 81 Govt Info/FOI Legis Supports bill to exempt much law enforcment info from FOI Act if it relates to organized
(Law Enforcement)
crime, counter-intelligence and domestic disorders even if it shows law violation
29
10 81 Oct 81 Prior Restraint
(Govt Oopyright)
Establish for first time royalty fees for using government information. Says it applies
to 'technical' info. Example used was training manuals. Will cover vast amounts of info.
04
12 81 Dec 81 Editorial Privacy
Executive order allows CIA and FBI to monitor and infiltrate press and academic groups on
(Nat/ Security)
on belief that necessary for national security. Reverses Carter Admin. policy.
10
01 82 Jan 82 Govt Info/Access
(Natl Security)
White House orders pre-clearance of all interviews with 'national media' on national
security issues: Later backs down
.
24
01 82 Jan 82 Prior Restraint
(Natl Security)
CIA official tells scientists to voluntarily submit research for CIA prior review:
13
05 82 Apr 82 Govt Info/FOI Act
(Nat]. Security)
Wins U.S. Supreme Court decision that identities of Iranian officials - who are citizens
of the U.S. can be suppressed for national securit
and
riva
y
p
cy reasons.(Wash Post case)
14
06 82 Jun 82 Govt Info/FOI Act
(Natl Security)
Asks for total exemption from FOI Act for CIA
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25
06 82 Jun 82 Prior Restraint
(Natl Security)
Supports most punitive version of Agent Identities Bill. Allows prosecution for naming CIA
agent without having to show any damage to national security.
11
08 82 Aug 82 Govt Info/FOI Act
(Natl Security)
Executive Order suppresses much historical information available under FOI Act: reverses
tradition of 20 years against over-classification of foreign policy and defense info
26
12 82 Dec 82 Prior Restraint
(Nat/ Security)
Defense Dept. says reporters will have to sign pre-publication secrecy pledge in order to
on U.S.S.R. military hardware.
09
01 83 Jan 83 Govt Info/Access
(All Info)
White House orders preclearance for all but a few designated officials & staffers to talk
to press. **We are told this has been highly effective.
16
02 83 Feb 83 Govt Info/FOI Act
(All Info)
Justice Department issues new rules designed to make it more expensive for press and
scholars to use FOI Act by insisting on no fee waivers as provided by FOI Act
27
02 83 Feb 83 Prior Restraint
(t+atl Security)
Justice Dept. orders Canadian films to register, carry disclaimer and list with government
names of American groups seeking to see film. Ignores 1st Amt exemption in Act
05
03 83 Mar 83 Editorial Privacy
Require government employees with access to classified nat'l security information to take
(Nitl Security)
lie detector tests to trace source of news leaks to press.
06
03 83 Mar 83 Editorial Privacy
Allows FBI to monitor and infiltrate press and academic institutions on non-probable cause
(Crime-Disorders)
of suspicion of involvement in or information about domestic crime or disorders
12
03 83 Mar 83 Govt Info/FOI Act
(Natl Security)
Seeks to exempt Secret Service from FOI Act for national security reasons. **Note
that Service licenses press coverage of White House.
28
03 83 Mar 83 Prior Restaint
(Natl Security)
Requires any government employees with access to classified nat'l security information to
sign pre-publication clearance agreements for books and articles
etc
,
.
30
09 83 Sep 83 Govt Info/Def Dept. Defense Dept. supports MX appropriations bill which includes provision that would seal all
(Law Enforcement) information on military air accidents fro:a press and public from air safety investigation.
31
25 83 Oct 83 Prior Restraint
Excludes American reporters from covering Granadian invasion while allowing foreign reporters;
brought in own DOD news service; detained 3 U.S. reporters and threatened to shoot others.
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I. (Defense Department Employees Must Take Lie
Detector Tests). Deputy Secretary of Defense
Frank Carlucci passed a rule stating that all
persons with access to classified information
must submit to lie detector tests if asked when
the Administration wishes to trace news leaks to
the press. Failure to submit will result in
adverse employment action. Date: 03/81
2. (Supports newsroom raids) Atty. Gen. Wm.
French Smith says he would support legislation
to permit newsroom raids if effort was to trace
leaks of national security info. This idea put
forth by Casey at CIA. This would revoke new
law severely limiting police raids of newsrooms.
Date 05/81.
3. (CIA into exchange with press) NY News
reported that CIA said it would brief reporters
going abroad only if reporters would agree to
collect info for agency. Date 08/81.
4. (FBI/CIA May Now Infiltrate Media - national
security) Justice Dept. passed regs removing
restrictions of Carter Administration. Allows
infiltration of media, political groups and
academia with approval of Attorney General if in
interests of National Security Date 12/81.
5. (Lie Detector Tests for News Leaks) President
Reagan announced that all government employees
having access to moderately classified
information (SCI - Special Compartmentalized
Information) which is leaked to press must take
lie detector'tests or face punitive job actions.
Very imtimidating device. Applies to Defense,
State, Justice, FBI, Treasury, Budget, NSC, etc.
Date: 03/83.
6. (FBI May Infiltrate Press - organized crime;
terrorism) Passed regs allowing FBI to
investigate, infiltrate and monitor domestic
groups, including press, if suspicion that
necessary for organized crime or terrorism
investigation. Date 03/83.
7. (Government Budget Cuts Back on Government
Reports) 1982 budget cuts way back on a variety
of government reports in a number of agencies.
Particularly seems to affect education, health,
urban affairs, labor and agriculture. See New
York Times story of 11-16-82, at page Al; 04/81
8. (Budget Cuts Restrict Archives Access) The
1982 budget cut approximately 60 per cent from
the archival indexing staff of the U.S.
Archives. This means that access to historical
information will be delayed for perhaps years
because most of this information, including the
Nixon tapes, has to be indexed and cleared
before it is released. Date: 05/81
9. Jan. 1983 Pre clearance of all interviews
with White House staff on all topics. Both
effort to protect national security and to avoid
embarrassment to President. Date 01/83.
10. (Jan. 1982 Pre clearance for national
security news interviews) Set up new rule that
all interviews with "national media" involving
national security (i.e. foreign affairs and
defense) must be precleared by White House.
Backed down after confrontation with White House
press corps. Date: 01/82.
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11.. (New classification order - suppressing
historical documents). Passed new regulations to
keep secret massive collections of historical
documents, which had been available to scholars
and journalists under FOI Act. Reversed 18 years
of presidential studies which had said that too
much was classified. Previous rule was release
unless publication would cause "IDENTIFIABLE"
!,.arm to national security. New reg allows
suppression for any "harm" to national security.
Date 08/82.
12. (Exempt Secret Service from F01) Currently
supports effort to exempt in interests of
national security Secret Service from FOI Act.
Note please that Secret Service licenses press
coverage of President and White House. Already
lost one law suit for excluding Robert Sherrill
of National magazine because of his political
views. Date 03/83 De Concini bill supported by
Administration: originally proposed in Treasury
Departmtnt assassination report of 08/81.
13. (Keep secret Iranian govt officials who are
American citizens). Told U.S. Supreme Court
would violate privacy and national security to
release names of revolutionary government
officials who were American citizens. U.S.
Supreme Court agreed. Date 05/82.
14. (Exempt CIA from FOI) Currently, supporting
a total exemption for the CIA from the FOI Act.
Once again, would allow suppression of
information even if showed that agency violating
law or policy directives. Strange request
because CIA never lost a FOI case of properly
classified information under FOI Act. Date 08/82.
15. (New FOI Guidelines Encourage Information
Suppression) Atty. Gen. William French Smith
issues new guidelines stating that any
information technically covered by the FOI Act
should be suppressed even if its release would
pose danger to the government or any third
party. This reverses Carter Administration
guidelines which said that information
technically covered by Act should be released
unless it posed a danger to government or a
third party. Date: 04/81
16. (New FOI Guidelinbs Encouraging Higher Fees
For Press and Scholars): Atty. Gen. William
French Smith issues new guidelines warning
government FOI officials to be ever watchful of
"the public treasury" and not to ordinarily give
fee reductions and waivers to journalists,
scholars, authors, etc. FOI Act states
government "shall" give waivers or reductions if
in the public interest. Date: 02/83
17. (Administation Support FOI Act amendment
suppression government regulatory information)
The Administration supported a bill introduced
by Sen. Orrin Hatch which would have suppressed
any "competitive" information submitted to the
government by any regulated corporation. This
bill would have suppressed, for example,
information submitted to the government showing
sex discrimination, race discrimination,
consumer fraud, pollution threats, environmental
problems , dangerous foods and drugs etc.
Current law does allow suppression but only if
this is really a "trade secret" or is truly
confidential financial information. Date: 10/81
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18. (Administration Supports FOI Act Amendment
to' Suppress Details of Government Legal
Settlements)The Administration supported a bill
introduced by Sen. Orrin Hatch which would have
suppressed under the FOI Act all government
information relating to why the government
settled a law suit. Currently, that information
is available. The bill would have suppressed
this information even if the law suit was
settled due to conflict of interest or even a
criminal law violation. Date: 10/81
19. (Administration Support FOI Act Amendment to
Suppress Law Enforcement Information if it Shows
Government is Committing a Crime) The
Administation supported a bill introduced by
Sen. Orrin Hatch would have suppressed under the
FOI Act all law enforcment information relating
to "organized crime", "counter intelligence" and
"terrorism". Should be noted that infiltration
of domestic political groups under Nixon called
"counter-intelligence" and campaign against
Actress Jean Seaberg was done under rubric of a
"terrorism" investigation. Date: 10/81
20. (Uphold pre publication agreements for CIA
agents) Supported position (taken by Carter
Admin) that CIA agents can be forced to submit
all writings (including poetry etc) to agency
under contract signed at time of employment.
U.S. Supreme Court agreed due to very sensitive
nature of CIA. Date: 05/81
21. (Cancel passports of U.S. critics) Told U.S.
Supreme Court that government could unilaterally
cancel passports of American citizens who went
abroad apd then endangered national security by
publishing (Philip Agee is the issue here).
U.S. Supreme Court agreed and said no danger to
national security need to be shown. Date: 06/81.
22. (CBS reporter threatened with espionage act
for Iranian books) Seized books of CBS News
stringer Wm Worthy. Books bought in Iran are
reconstructed cables of U.S. embassy taken over.
Have been published in Europe and freely on sale
in Teheren says Worthy. Threatened Worthy with
prosecution. Finally dropped and paid Worthy
$16,000. Date 08/81.
23. (Cuban books and newspapers) Under trading
with the enemy act, held up books and newspapers
from Cuba for months. Date 08/81.
24. (CIA Officials Seek Prior Review of
University Research) Depty CIA Director Bobby
Inman told a group of scientists that they
should voluintarily submit to the Agency all
proposals for privately funded university
research. He cited danger to national security.
(Later, this concept pushed as danger to foreign
trade in re Japanese using American technology).
Date: 01/82
25. (Agent ID Bill) Supported the most punitive
version of "Agent Identities Bill" which has
made it a crime to name an intelligence agent
even if he is breaking federal law or
regulations. Not necessary to show that
newspaper published information with intent to
harm U.S. or that information posed any danger
to national security. Are some defenses but they
are weak and mainly cosmetic. Date 06/82.
26. (Reporters Sign Secrecy Pledge) Defense
Department asked reporters to sign a secrecy
pledge before being given briefing on USSR
military build-up. Date: 12/82
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27. (Canadian films) Required film distributed
by film board of Canada to carry notice of
"political propoganda" when shown in this
country. Films were on pollution and nuclear
disarmaments. Done under Foreign Agents
Registration Act which has exemption for info
not
also
primarily benefiting foreign govenment.
requires names of all American groups
Act
who
31.
seek
to see film. Date 02/83.
28. (Now wants pre publication agreement for all
persons who have access to classified info in
Defense, State, Dept. of Justice, Treasury,
etc.) Announced that would require pre
publication agreements for broad category of
persons in interest of national security. Date
03/83.
29. (Establish Royalty Fees For Use of
Government Information) The Administration
supported a bill introduced by Sen. Orrin Hatch
which would have, for the first time, imposed
fees for the "commercial" value of government
information obtained under the FOI Act. Act said
"technological information" but David Gergen,
Ditector of White House Office of Communications
used as one example "training manuals" of the
Department of Defense. Seems fair to conclude
here this would first step in establishing
government copyright. Date: 10/81 This
information specified was "tehcnical"
information. The example given by David Gergen
at the National Press Club was amry training
manuals. .If army training manuals can be
subject in effect to government copyright, what
is next? Dept of Treausry reports (they have
conmerical value, etc.).
30. (Sealing of all information on military aircraft accidents
resulting fran the air safety investigation.) Department of
Defense attempts to include a provision in the MX defense
appropriations bill that would seal all information fran the
press and the public resulting fran the air safety investigation
conducted by the military.
(Excludes American News Media From Covering U.S. Invasion of
Granada.) During the invasion of Granada, the Administration
a. Excluded American reporters from covering the inva-
while allowing foreign reporters to remain;
b. Brought in their own Department of Defense news ser-
vice to provide favorable coverage of the invasion;
c. Detained three American reporters who were already
on the island during the invasion;
d. Threatened to-shoot at any reporters who attempted
to reach the island on their own.
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