TESTIMONY RABBI DAVID SAPERSTEIN ON BEHALF OF THE UNION OF AMERICAN HEBREW CONGREGATIONS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000300380005-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 9
• Document Creation Date: December 21, 2016
• Document Release Date: August 22, 2008
• Sequence Number: 5
• Publication Date: February 29, 1984
• Content Type: REPORT

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TESTIMONY
RABBI DAVID SAPERSTEIN
On Behalf of the Union of American Hebrew Congregations
SUBCOMMITTEE ON CIVIL SERVICE
OF
THE HOUSE COMMITTEE ON POST OFFICE AND CIVIL SERVICE
FEBRUARY 29, 2984
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I would like to thank this Subcommittee and its Chairperson, Rep. Patricia
Schroeder, for the opportunity to testify at this important hearing. My name
is Rabbi David Saperstein, and I am Co-Director and Counsel of the Religious
Action Center of Reform Judaism. With me today is Albert Vorspan, the
vice-president of the Union of American Hebrew Congregations. We are here on
behalf of the Union of American Hebrew Congregations (UAHC), which represents
over one million Reform Jews throughout the United States and Canada.
We are here because the issues of personal privacy and government secrecy
are important concerns for the members of our movement's more than 800
congregations. The Jewish tradition regards the right to privacy as an
inalienable extension of the inherent dignity of each human being, a right
enjoyed by all those who have been created "in the image of God." Judaism has
also posited the fundamental notion that governments and societies exist to
serve the people -- and not vice versa. Such governmental purposes are
strengthened by a citizenry that is both vigilant and informed. America shares
these values. At stake are those freedoms, liberties and rights which are the
essence of this great American experiment. We are here because of our
conviction that the struggle to perpetuate and strengthen our democracy is a
primary responsibility of all Americans. And we believe that the Presidential
Directive on Safeguarding National Security Information of March 11, 1983,
threatens to undermine those freedoms.
One central difference between a democracy and a dictatorship is that in a
dictatorship the workings of the government are closed to the people and the
lives of the people are open to the government. In a democracy, the workings
of the government are open to the people and the lives of the people are closed
to the government. Thus, in authoritarian systems such as the Soviet Union,
the workings of the Politburo are carried on in strict secrecy. On the other
hand, the Soviet citizenry is subjected to thorough surveillance. In liberal
democratic societies, individuals enjoy privacy in order to form public
consensus, resolve conflicts, and promote the expression of independent ideas.
The debate in the public forums of America is enriched by an open and
accessible government.
In the wake of Watergate, a number of legislative reforms significantly
improved protections of the right to privacy of American citizens and opened up
the workings of the government to the American people. During the past three
years that trend has been decisively reversed. The National Security Decision
Directive is part of an ongoing effort of this Administration to restrict the
workings of the government from the scrutiny of the people while opening up the
lives of its citizens (without suspicion of criminal activity or the existence
of a clear and present danger to national security) to the surveillance of the
government.
The specific issue being addressed by this hearing must be seen against
this backdrop of Administration actions including:
* Efforts to restrict access to government information under the Freedom
of Information Act (FOIA);
* Efforts to exempt whole agencies, such as the CIA and Secret Service,
as well as certain governmental regulatory processes, from the FOIA;
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* Efforts to extend greatly the use of lie detectors to prevent leaks of
information to the press;
* Significant expansion of the scope and duration of governmental
information which could be classified;
* Cutbacks in funding for government publications and archival work;
* Efforts to establish governmental copyright claims over vast amounts of
government information;
* Restrictions on press access to crucial U.S. actions such as the
invasion of Grenada.
Against this background, the Administration proposes, through a draconian
mechanism, to impose secrecy for life on an exceedingly broad range of
government employees. It would greatly expand polygraph usage to stop real or
potential information leaks.
Under the directive's censorship proposals, precisely those people who
have extensive experience and expertise on matters of foreign, domestic,
military and diplomatic affairs - those who have served the government in the
past - will be severely constrained in their freedom of expression.
It is the American people and the American government who will lose if
these proposals become law. Over 100,000 government officials will be subject
to these censorship provisions. These people, who have a unique and invaluable
contribution to make to public debate on current and future policies, will be
silenced or sharply curtailed in the exercise of their first amendment rights.
Such rights do not stop at the gates of the Justice Department, the State
Department, or the White House. Potential civil servants will be deterred from
entering government service lest their long-term academic or employment
opportunities be severely restricted because of these limitations. And we will
face the specter of former government officials submitting class lectures,
newspaper columns, books, and scholarly articles for review and possible
censorship by those very officials who have replaced them and who may be the
subject of criticism in the writings being reviewed.
The vague and open-ended nature of the directive will have a corrosive
impact on the participation of former government officials in public policy
debates. There is almost nothing of a poltical nature which a former official
could say which would not fall under this directive -- particularly as the
amount of classified material multiplies so rapidly. Recent studies have shown
abuses of the classification system to be rampant. Not only has the amount of
material which is classified multiplied, but the instances of misclassification
have been found to be extensive. And all too frequently what is classified
with a national security restriction turns out to be nothing more than factual
information which is vital to a robust public debate on American policy. In
fact, under the proposed prepublication contracts, not only does prepublication
review apply to materials which were classified when a person worked for the
government, but refers also to "classifiable" material, i.e., material which
might be classified later. "Later" could mean, for example, while a book is
being reviewed by an agency which is being criticized in it.
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Despite the Justice Department's protestations that materials which
consist of personal views, opinions or judgments in the form of public speeches
or articles do not require prepublication review, the sweeping language of the
directive calls this contention into question. Even when classified facts are
"implied," they are subject to review. As the Justice Department's explanatory
notes state: "Of course in some circumstances the expression of opinion may
imply facts and must be of such a character as to require prior review." How
could informed opinions of former officials not imply certain facts which would
require review? Prepublication censorship agreements, such as the ones that
would be imposed by this directive, strike at the heart of the first amendment
and must be repudiated and rejected by the American people and their elected
officials.
The lie detector provisions are equally odious to those who cherish the
right to privacy and the freedoms protected by the first amendment. According
to the GAO, four million government employees or government contractors would
potentially be subject to these tests. If used arbitrarily, unrelated to
probable cause of suspected criminal activity or to a clear and present danger
to national security, lie detectors, tools of questionable accuracy, will be
used to infringe broadly on the privacy rights of our citizenry. Such usage is
the act of an authoritarian regime, not a government which cherishes civil
liberties.
There is simply no need for this directive. Under current law, when there
is probable cause for suspicion of criminal activity, government infringement
of a suspected criminal's privacy rights must be authorized by a court. Where
the government shows that publication of material would cause direct, immediate
and irreparable injury to the national security, prepublication restrictions
will be enforced [New York Times v. U.S., 403 U.S. 713 (1971)]. But the
burden of establishing in court the presence of conditions requiring censorship
rests on the government. This directive will reverse that burden. It will
allow censorship by administrative action and would require the affected
individual to go to court to show that publication would cause harm. When the
burden of establishing a case is on the government, it will act sparingly and
with restraint. When the government is permitted to act arbitrarily it will
tend to act arbitrarily.
Experience with the FOIA and with existing censorship agreements shows
that weeks, months -- even years - can go by before all clearances are
completed. Imagine the bureaucracy which would have to be created to implement
the provisions of this directive. Imagine the burden on our Administration in
reviewing the writings of tens or hundreds of thousands of employees. Delays
will proliferate; writings will no longer be timely; and costly appeals of
decisions to censor materials will multiply. The proposed system is not only
constitutionally flawed and morally wrong, it is conceptually dysfunctional.
Excessive government surveillance and government secrecy creates the kind
of suspicion and fear which distorts and intimidates political debate. Such
fear chills political dissent. And the chilling of dissent cracks the
foundations of a democratic society.
Our national security rests primarily on the traditions of civil liberties
and respect for human dignity which have illuminated American society. We note
that the Administration is having second thoughts about this proposed
experiment on our liberties. Nevertheless, we believe that in the context of
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the Administration's previous ill-considered zeal, only continued Congressional
action will serve to guard these liberties from further experimentation.
At the Biennial Convention of the Union of American Hebrew Congregations
held this past November, over 3500 delegates from congregations from across
this country expressed their concern on this issue. On February 14, 1984, the
Union of American Hebrew Congregations Executive Committee voted unanimously to
condemn this directive, to praise the Congress for having enacted legislation
delaying its implementation, and to call on the Congress to ban its
implementation permanently. The Board explicitly cited Rep. Brooks' bill, H.R.
4681, as one effective approach to implement such a ban. [See the attached
resolution.]
We believe that the legislation before this Subcommittee would
significantly help to prevent the abuses we have described. While we concur
with the legislation's provisions regarding prepublication review, we do have
certain suggestions for strengthening the bill's protections against the abuses
inherent in the use of polygraph tests. Although we recognize that the bill's
provisions reflect an effort to balance the investigatory role of governmental
bodies against the protection of the rights of employees, we would advocate a
complete ban on the use of polygraph tests until the reliability of such
examinations has been established. So long as the use of such tests are
sanctioned, the failure to "voluntarily" take a test will always cast doubt on
the validity of the employee's contentions. Furthermore, there is no way to
prevent the imposition of sanctions on an employee who refuses to take such a
test. Despite the admirable intent of the bill to prohibit such sanctions,
they will manifest themselves in subtle but pervasive ways.
Such issues are not dissimilar to those issues surrounding the use of the
fifth amendment. The unreliability of confessions and the negative
implications of refusing to testify are considerations similar to those raised
by the use of lie detector tests. The Jewish tradition resolved these problems
regarding self-incrimination by imposing a complete ban on its use. So, too,
we would urge that the bill's concern with the unreliability of polygraph tests
and the negative inferences drawn from a refusal to take them requires a
complete polygraph ban.
There are two other aspects to the controversy over the directive which
need to be explored, but which were only touched on in prior hearings. We must
not lose sight of the basic questions regarding the nature of government and
the nature of human rights which are at stake here. Reflected in the directive
and in other efforts to restrict information from the American people is an
alarming tendency to view the government as an entity divorced from the
American people. This tendency finds expression in the claim which the
government has been making that it has a proprietary ownership or copyright
claim on government information -- a claim which prevents the access of
citizens to information vital to a healthy democracy. Ours must remain a
government of the people, by the people, and for the people. The founders of
this nation established a government based on the belief that informed, open
debate was the cornerstone of a democracy that could best serve to protect the
inalienable rights of all its people. It is the function of government to
disseminate information so as to strengthen such debate. This Administration
has reversed the course of former administrations by radically restricting this
flow of information.
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Furthermore, this claim to ownership must be viewed in the context of a
long-standing debate over privacy. To point out that the legal history
(embodied in cases like Wheaton v. Peters [33 U.S. 591 (1834)], the 1909
Copyright Act, and the 1976 Copyright Act) clearly indicates that the
government cannot assert such rights only provides a partial response to this
claim. For what is at stake in the Administration's contention is the very
nature of privacy rights in America.
Until 1967 (and sporadically since then), the Supreme Court maintained
that privacy rights reflected property rights, i.e., so long as one's property
rights were not infringed, one's privacy rights were not infringed. [See
Olmstead v. United States, 277 U.S. 438 (1928)]. Since 1967, [in United
States v. Katz, 389 U.S. 347 (1967)], the Supreme Court has increasingly
relied on a notion of privacy divorced from property rights and rooted in what
Professor Edward Bloustein calls "the inviolate personality" of each human
being. This view of privacy sees privacy rights as inherent in the very nature
of each human being. And this notion led to an expanded and invigorated right
to privacy which has manifested itself in a broad range of constitutional
rulings.
The Jewish tradition is clear about its view of privacy. Privacy is a
reflection of the inherent freedom and dignity which every human being enjoys.
The Jewish concept of privacy is rooted in the theological belief that God both
reveals Himself to humanity, yet also remains hidden from us. As we are
created "in the image of God", so we, too, possess both that which, by its
essence, is to be known and that which is to remain private. To seek to know
the unknown in God is considered an intrusion upon the divine dignity (Kavod)
of God (Haggai 2:1). So, too, invasion of the privacy of the individual is an
affront to the inherent dignity of man. Thus, it is the inherent nature of the
individual, as reflected in the concept of "created in the image of God" which
is the source of privacy. So important is this perception that there is a
special prayer said: Blessed is God who alone descerneth secrets; for the mind
of each is different from that of the other. (Talmud, Berakhot 58A).
In 1971, the Biennial Convention of the UAHC declared: "Each person has
the right to determine for himself how much of his complex beliefs, attitudes
and actions he chooses to disclose. To the individual, this data is more than
just statistics. It is the data of judgment that can affect his schooling,
employment possibilities, promotion or role in the community. If all our
actions are documented... it would be a tyranny over mind and destiny. It
would crush privacy, civil liberties and human dignity."
If the right to privacy, to determine which aspects of our lives are to be
made known to others -- a right called by Justice Louis D. Brandeis "the most
comprehensive of rights, the right most valued by civilized men" -- is to be
preserved, it requires an informed and vigilant citizenry. It is in this
context that we urge the Congress to ban the implementation of the National
Security Decision Directive, to reverse the infringements on the Freedom of
Information Act, and to enact more stringent legislation protecting the
financial, legal and medical records in which American citizens have a vital
privacy interest.
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adopted by the UAHC Board of Trustees Executive Committee, February 6, 1984.
Background:
We note with concern recent governmental actions and technological developments
in the areas of privacy and government secrecy. In the context of the Reagan
Administration's efforts to curtail the Freedom of Information Act and expand the
amount of classified government information, we are particularly concerned about
the national security directive of March 11, 1982 (the National Security Decision
directive). This directive would impose lifetime censorship on a broad range of
government employees and would institute widespread use of lie detector tests.
According to the Government Accounting Office, the directive would allow the gov-
ernment to subject four million employees of the government and of government
contractors to lie detector tests. If the censorship provisions had been in ef-
fect under prior administrations, lifetime gags would have been placed on men and
women such as Mondale, Kissinger, Vance, Carter and Nixon. Everything they said
and wrote publicly which pertained to areas of national concern, in which they
had access to classified material (which would cover almost every aspect of the
current political scene), would have been subject to prior clearance by the White
House. The House Committee on Government Operations recently found that the di-
rective was unjustified and would significantly erode the constitutional rights
of American citizens.
At the same time, major technological developments in the area of computer re-
cordkeeping make vast amounts of information about our lives accessible to the
government, as well as to private parties. Existing privacy legislation is
quickly becoming outdated and major changes are required.
These recent trends threaten the foundation of our democratic society. Excessive
government surveillance creates the kind of suspicion and fear which has a chill-
ing effect on political debate and dissent. This right to privacy, called "the
most comprehensive of rights and the right most valued by civilized men," by
Justice Louis D. Brandeis, can be preserved only by an informed and vigilant
citizenry.
Resolution:
The Executive Committee of the Union of American Hebrew Congregations, meeting in
New York, New York, on February 6, 1984:
1. Calls on the President to rescind the National Security Decision directive;
2. Commends the Congress of the United States for freezing the implementation of
the directive until April 15, 1984;
3. Calls upon the Congress to implement legislatively the findings of the House
Committee on Government Operations (that the directive was unjustified and would
result in a major erosion of constitutional rights) by supporting legislation
(such as H.R. 4681) which would permanently prohibit the implementation of the
directive.
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4. Calls upon the Administration to cease efforts to restrict the Freedom of In-
formation Act or, failing that, upon the Congress to prevent such restrictions
legislatively; and
5. Urges the Congress to enact legislation which would protect financial, legal,
medical and other records in which American citizens have a right to privacy.
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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
(Sealing of all information on military aircraft accidents
resulting from the air safety investigation.) Department of
Defense attsmpts to include a provision in the MX defense
appropriations bill that would seal all information from the
press and the public resulting fran the air safety investigation
conducted by the military.
not
also
seek
primarily benefiting foreign govenment.
requires names of all American groups
to see film. Date 02/83.
Act
who
31.
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 categoryaf
persons in-.int-erest:.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,
Director 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 "tee :iical
information. The example given by David Gergen
at the National Press Club was arw'y training
manuals. -If army training manuals can be
subject in effect to government copyright, what
is next? Dept. of Trea5Vry reports (they have
cornnercial value, etc.).
(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 invasion
while allowing foreign reporters to remain;
b. Brought in their own Department of Defense news service
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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