AMENDMENT NO. 2378

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP91-00561R000100030038-7
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 23
• Document Creation Date: December 22, 2016
• Document Release Date: February 9, 2012
• Sequence Number: 38
• Publication Date: October 20, 1983
• Content Type: OPEN SOURCE

STAT
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S 14282
CONGRESSIONAL RECORD - SENATE
these leadtimes can be reached. There- distinguished colleague strikes a bal-
fore, I urge my colleagues to reject the ante here that is reasonable and fair
amendment of the Senator from Cali- under the circumstances. It is accept-
fornia., able on this side. I know of no objec-
DEPARTMENT OF STATE
AUTHORIZATIONS
The PRESIDING OFFICER. The
question now recurs on S. 1342, which
the clerk will state by title.
The bill clerk read as follows:
A bill (S. 1342) to authorize appropri-
ations for the fiscal years 1984 and 1985 for
the Department of State, the United States
Information Agency, and the Board for In-
ternational Broadcasting, and for other pur-
poses.
The Senate resumed consideration
of S. 1342.
Mr. -JOHNSTON. Mr. President, I
suggest the absence of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The bill clerk proceeded to call the
roll.
Mr. ZORINSKY. Mr. President, I
ask unarimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr.
MATTrNGLY). Without objection, it is so
ordered.
AMENDtdENT NO. 2377
Mr. ZORINSKY. Mr. President, I
send an amendment to the desk and
ask for its immediate consideration.
The PRESIDING OFFICER. The
amendment will be stated.
The legislative clerk read as follows:
The Senator from Nebraska (Mr. ZOR-
INsxY) proposes an amendment numbered
2377.
Mr. ZORINSKY. Mr. President, I
ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. With-
out objection,: it is so ordered.
The amendment is as follows:
On page 32. after line 7, insert the follow-
ing:
SEC. 210. Notwithstanding any other pro-
vision of law not more than $20.000 of the
funds authorized to be appropriated to the
United States Information Agency for fiscal
year 1984 or fiscal year 1985 shall be availa-
ble for domestic representation or entertain-
ment expenses, including official receptions.
Mr. ZORINSKY. Mr. President, I
read from the committee's report:
in approving USIA's budget, the commit-
tee intends to limit USIA domestic represen-
tation allowances to the fiscal year 1983
level of $10.000. The committee sees no jus-
tification for a quadrupling in domestic en-
tertainment for high USIA officials at a
time of record budget deficits and double
digit unemployment.
The State Department appropri-
ations measure, which I understand
the Senate may consider next, allows
expenditures up to $50,000 for domes-
tic representation. This amendment
allows expenditures of no more than
$20,000, notwithstanding any other
provision of law.
I have talked to the managers of the
bill, and they have indicated that they
have no objection to this amendment.
Mr. PERCY. Mr. President, I believe
that the amendment offered by my
tion. I understand that it has been ap-
proved by the ranking minority
member, who is on the floor at the
present time and has signaled his ap-
proval.
The PRESIDING OFFICER. The
question is on agreeing to the amend-
ment.
The amendment (No. 2377) was
agreed to.
Mr. ZORINSKY. Mr. President, I
move to reconsider the vote by which
the amendment was agreed to.
Mr. PERCY. I move to lay that
motion on the table.
The motion to lay on the table was
agreed to.
Mr. ZORINSKY. Mr. President, I
suggest the absence-of a quorum.
The PRESIDING OFFICER. The -
clerk will call the roll.
The legislative clerk proceeded to
call the roll.
Mr. MATHIAS. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr.
CocmRAN). Without objection, it is so
ordered.
ante, or implementation of certain rules
requiring prepublication review of the
writings of former officers and employees
of the Government)
Mr. MATHIAS. Mr. President, I send
an amendment to the desk and ask for
its immediate consideration.
The PRESIDING OFFICER. The
amendment will be stated.
The legislative clerk read as follows:
The Senator from Maryland (Mr. MA-
Txres), for himself and Mr. EAGLETON, Mr.
BENTSEN, Mr. BIDEN, and Mr. BRADLEY, pro-
poses an amendment numbered 2378.
On page 24, between lines 19 and 20,
insert the following:
PREPUBLICATION -REVIEW OF WRITINGS OF
FORMER FEDERAL EMPLOYEES
Sec. 122. The head of a department or
agency of the Government may not, before
April 15, 1984, enforce, issue, or implement
any rule, regulation, directive, policy, deci-
sion, or order which (1) would require any
officer or employee to submit, after termi-
nation of employment with the Govern-
ment, his or her writings for prepublication
review by an officer or employee of the Gov-
ernment, and (2) is different from the rules,
regulations, directives, policies, decisions, or
orders (relating to prepublication review of
such writings) in effect on March 1, 1983.
Mr. MATHIAS. Mr. - President, I
wish the RECORD to reflect that I offer
this amendment on my own behalf
and on behalf of the distinguished
Senator from Missouri (Mr. EAGLE-
ToN), who has taken a great personal
interest in this subject, I also ask
unanimous consent to add as cospon-
sor the Senator from Texas (Mr. BErrr-
sEN), the Senator from Delaware (Mr.
BIDEN), the Senator from New Jersey
(Mr. BRADLEY), and the Senator from
New York (Mr. MoyNnL%N).
October 20, .7983
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. MATHIAS. Mr. President, this
amendment is a very simple one. It
does not attempt to alter, change,
repeal, enjoin, or otherwise in any way
adversely to affect the relevant provi-
sions of National Security Directive
84. It simply would delay until April
15, 1984, the implementation of a new
program of censorship of the writings
of private citizens who have previously
held important positions in the Gov-
ernment of the United States of Amer-
ica.
We are not, at this stage of the
game, trying to change the rules. We
just say this is an important subject
and a serious subject, and let us take 6
months to look at it. Let us take 6
months to review it.
What the proposal seems to do is to
expand the system of prepublication
review of the writings of former offi-
cials, and I understand the reasons
given for doing so. I think we-all share
a certain sense of frustration in this
area. There is President Reagan's jus-
tified concern about the leaks of clas-
sified information from within the ex-
ecutive branch, and it is shared by, I
believe, ever Member of the Senate,
certainly by myself. Many of us are
disturbed that national secrets seem to
have become the common currency of
the daily press.
But the administration's response to
the problem focuses on National Secu-
rity Decision Directive 84, and this di-
rective, issued last March, contains a
number of provisions aimed at curbing
leaks. None of these has been more
controversial than the proposal -to
expand the scope and the coverage of
prepublication censorship. .?
National Security Decision Directive
84 imposes a new duty on all officials
with access to the most sensitive se-
crets: Sensitive compartmented infor-
mation. In the alphabet soup of Wash-
ington bureaucracy, sensitive compart-
mented information becomes SCI.
Officials who have had access to SCI
would be required to make a lifetime
promise that, before publishing any
writing about a broad range of mat-
ters, they will-first submit their manu-
scripts for censorship by the Govern-
ment. This would be a permanent obli-
gation. Whether they are young men
and women, midcareer, or live to old
age, a promise binds them. It would
apply after the official leaves the Gov-
ernment and returns to private life.
The number of officials who would be
required to make this pledge is enor-
mous.
We estimate 100,000 in the Depart-
ment of Defense alone and, of course,
many thousands of others in the De-
partments of State, Justice, Energy,
and other agencies. So it is not s rpris-
ing that the issuance of National Secu-
rity Decision Directive 84 provok d in-
tense criticism of the proposed ee or-
ship system.
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October 20, 1983 CONGRESSIONAL RECORD - SENATE
The administration seemed to be
calling-and I emphasize seemed, be-
cause all I am_ asking for are a few
extra months to make sure, we are not
asking to change the system in any
way at this point-but the administra-
tion seemed to be calling for a sweep-
ing program of prior restraint. Prior
restraint has been one of the most
ominous phrases in our language, a re-
striction on free speech which could
pass muster under the first amend-
ment only if compelled by the most
extraordinarily dangerous circum-
stances.
Constitutional considerations aside,
many critics question on policy
grounds a system which. would allow
the officials of one administration to
censor the writings of their pred-
ecessors.
You can easily understand, I think
every Senator can understand, all
being political creatures, how this
power could be abused, how it could
deprive the Nation of an essential
policy resource, those frank and forth-
right opinions of officials in whom the
public has come to repose an extraor-
dinary degree of trust. I think of
President Hoover as one of the senior
statesmen of America who for a gen-
eration was a national resource, a
source of wisdom, of knowledge, of in-
formation. I think Secretary Rusk oc-
cupies that position today, and you
can think of many other examples, all
of whom would be to some degree re-
stricted in their ability to give the
public their writings as guidance for
the formulation of policy. -
Now National Security Decision Di-
rective 84 gave merely a skeletal out-
line of a planned program. Only on
the 25th day of August did the admin-
istration release its detailed plans for
the implementation of the censorship
program. Within 3 weeks the Govern-
mental Affairs Committee held the
first and, as far as I know, the only,
hearings that had been held in the
U.S. Senate on this program. Of
course. I must say, and this is one of
the bases for this amendment, this oc-
curred only 2 months ago and we
really have not had an opportunity to
look at the program to see what its
problems are and see what merits it
has in it. But what the Governmental
Affairs Committee learned, I think,
was disturbing. We were struck by how
little evidence there is that former of-
ficials have abused their trust by re-
vealing classified information without
authorization.
I put the question to the Depart-
ment of State, to the Department of
Justice. and to the Department of De-
fense. which together have thousands
of employees with SCI clearances. I
asked each-of those departments how
many times in the past 5 years, how
often in the past 5 years, former offi-
cials have revealed classified informa-
tion without permission.
This is the problem for which we
may sacrifice an important element of
the first amendment protection; how
serious is the problem for such a seri-
ous sacrifice?
Well, the answer was that the De-
partment of Justice said it knew of no
incident in which any former Depart-
ment of Justice official had revealed
anything. The Department of State
said it knew of no incident in which
any former State Department official
had revealed anything. The Depart-
ment of Defense had one confirmed
case of a disclosure of classified infor-
mation and one that had been report-
ed but had never been confirmed.
That is the problem. No incidents in
5 years in the Department of Justice,
no incident in 5 years in the Depart-
ment of State, one in the Department
of Defense, and maybe one other.
Mark Twain made the famous state-
ment which has been quoted and pro-
claimed by a great many other people
since his day, "If it ain't broke, don't
fix it." And this might be-an appropri-
ate point at which to quote Mark-
Twain.
Mr. PERCY. Mr. President, will the
distinguished Senator yield for a ques-
tion?
Mr. MATHIAS. Yes.
Mr. PERCY. Would it be that -we
would have a situation where former
Secretary of State Dean Rusk, former
Secretary of State Cy Vance, former
Secretary of State Henry Kissinger in
writing their memoirs would have to
submit those memoirs to the Depart-
ment for approval?
Mr. MATHIAS. You stated-
Mr. PERCY. At what level, knowing
how our Government operates, would
the Federal employee probably be at
who would review those and render a
judgment on a former Secretary of
State as to whether what he said
might be contrary to the national se-
-curity interests, and who defines what
the national security interests really,
are? Is it possible to divorce it from po-
litical interest?
Mr. MATHIAS. The chairman has
asked the right questions and, frankly,
I do not know the answers because we
tried to get some of those answers, and
I do not believe really that those diffi-
cult questions have been thought out
thoroughly.
All I am suggesting at this point is
that we waft 6 months until we can get
those answers. But it is clear that
former Secretaries of State, writing
their memoirs which are of enormous
policy value for generations, would
have to submit the manuscripts to
some censor somewhere in the Gov-
ernment. You ask how many people
would this cover? Well, if it is 100,000
in the Department of Defense alone,
you can see that goes from the Secre-
tary of Defense a long way down to
the civil service.
I asked the question as to what kind
of volume there might arise here, and
the administration witness sort of
brushed that off by saying "Well,
probably less than the applications
under the Freedom of Information
Act." But I do not think that really is
S 142S3
a substantive answer because, as the
chairman of the committee has sug-
gested, you touch upon very delicate
subjects that will require not a me-
chanical shuffling of papers but a
matter of real judgment if a Secretary
of State, writing his memoirs touches
upon a subject that may be of embar-
rassment to the then incumbent ad-
ministration, and then who is going to
make that decision that this is truly a
security matter, a security leak, and
who is going to say "No, it is really a
matter of current political embarrass-
ment"?
So the chairman has touched the
critical point.
I,et me just say we asked a number
of followup questions of the various
administrative agencies and of the de-
partments, questions similar to those
of the chairman and to this day the
committee has not yet received an-
swers to those questions. So that is my
concern.
At the hearing on the 13th of Sep-
tember the Committee on Governmen-
tal Affairs also took the testimony of a
panel of distinguished former officials,
including a former counselor to the
President, a retired admiral in the
Navy and Director of the National Se-
curity Agency, and former Director of
Central Intelligence, and I think that
the administration proposal got what I
would call a mixed review.
Each of these witnesses-I think
they could be called expert witnesses-
made constructive suggestions for
plugging the leaks by other methods
which relied less on the principle of
prior restraint.
Because I thought that these sugges-
tions ought to be considered, and be-
cause the details of the censorship
plan had been unveiled only a -few
weeks before, I asked at the hearing
that the administration delay full im-
plementation until Congress had had a
chance to comment. A few days later,
on September 23, Senator EAGr.S'rON
and I wrote to the President with a
similar request. We have received no
positive response.
Mr. President, under these circum-
stances, Congress must act. We must
insure that the free speech rights of
our most experienced public servants
are not restricted unnecessarily. We
must have an opportunity to satisfy
ourselves that such a drastic step is
warranted. This congressional consid-
eration must precede implementation
of the censorship plan. If trusted Gov-
ernment officials are to be called upon
to sign sweeping prepublication review
agreements, Congress must first have
a chance to assess the full implica-
tions.
Accordingly, our amendment would
require the administration to follow
the familiar formula of caution: stop,
look, and listen.
The administration should stop im-
plementation of the censorship pro-
gram. Prepublication review programs
which were in place prior to the issu-
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S14284
CONGRESSIONAL RECORD - SENATE
ance of NSDD-84 would be uneffected
by this amendment. These include the
extensive censorship systems of the
CIA and other intelligence agencies.
The administration should look at
the alternatives which have been sug-
gested in both Senate and House hear-
ings. The evidence produced so far
suggests that the administration is
trying to solve a genuine problem, but
is going after it with a shotgun when a
rifle may be needed. Perhaps we can
help to sharpen the administration's
aim.
The administration should listen to
the comments and suggestions of both
Houses of Congress. We share the
President's concern about leaks- Work-
ing together, we may be able to put to-
gether a program that will plug leaks
without chilling free speech- Further
investigation may show that the ad-
ministration is on the right track- But
we will never know if the program is
locked into place before Congress has
a chance to look at it.
Mr. President, this amendment
would freeze the status quo until April
15, 1984. My colleagues may recall
that the implementation of another
controversial provision of NSDD-84
has also been postponed to the same
date. The late Senator Jackson was so
concerned about the directive's pro-
posed expansion of polygraph testing
that, in one of the last of his legisla-
tive initiatives, he led a successful
effort to gain Congress the time to
take a closer look. I urge my col-
leagues to acknowledge that the cen-
sorship provisions of the directive
raise similar disturbing questions. If
we can foster more care and less haste
in this sensitive policy area, we will
have made an important contribution.
Mr. GOLDWATER. Will the Sena-
tor yield? -
Mr. MATHIAS. I would be happy to
yield for a question.
Mr. GOLDWATER. It is a question,
but I do not intend to speak long on
this anyway.
But as I read the amendment, this
would not take effect before April 15,
1984.
Mr. MATHIAS. We are just asking
for 6 months to look at it because the
agencies simply have not been able to
give us the answers to the questions
yet.
Mr. GOLDWATER Well, I believe
the Senator just said the thing that is
in the minds of all of us who are occu-
pied with the protection of intelli=
gence. You want to find out how seri-
ous it is and what we can do about it
to stop it without stopping the so-
called first amendment or constitu-
tional rights of all Americans who are
employed
Now to me this does not merit a
major fight- I will remind the Senator
that when the President's proposals
first came out they included the poly-
graph test. And you recall, when this
was introduced by Senator Henry
Jackson-,a proposal that I find great
merit in-we were able to compromise
and put that off for a further study
which we have done.
I would like to ask my friend from
Maryland if he does not think, instead
of making an absolute prohibition to
begin on April 15, if he might suggest
that the interested people sit down
and discuss this and come up with
some workable answers. Now I do not
happen to believe that every person
who has ever worked for the State De-
partment or even who has worked for
the CIA should be precluded Howev-
er, I can cite some cases, as the Sena-
tor knows, that have resulted in some
deaths from the use of classified infor-
mation by people still operating, I
might say, around DuPont Circle in
this town.
.1 wonder if the Senator would not
agree that a meeting of interested
people might produce a better or equal
result to just writing it down in an
amendment. -
Mr. MATHIAS. Let me say to the
Senator from Arizona, the chairman
of the Intelligence Committee, that
the Senator from Missouri and I have
wanted such a meeting. The Senator
from Missouri and I wrote on Septem-
ber 23 to the President and at that
time we really asked that we get to-
gether-, that we delay implementation
only until we can sit down together
and work something out.
At this point, with the concurrence
of the Senator from Missouri, I ask
unanimous consent to have printed in
the -REcoan a copy of our letter to the
President.
There being no objection, the letter
was ordered to be printed in the
REcoan, as follows:
CoMMrrrr E ON
GovERxmExT r. AFFAIRS,
Washington, D.G. September 23, 1983.
THa Pass=sax,
The White House,
Washington, D. C.
DEAR Ma. PRESIDENT: We are writing to re-
quest that you delay the implementation of
National Security Decision Directive 84 so
that Congress can fully assess the implica-
tions of its controversial provisions.
Along with five of our colleagues on the
Committee on Governmental Affairs, we
sought hearings on this Directive because of
our concerns about several of its provisions.
But above all we are troubled by the broad
pre-publication review requirement which
the Directive imposes on former Govern-
ment officials.
The Constitution forbids the government
to impose prior restraints on the speech of
citizens unless it can show the most urgent
necessity for doing so. The implementation
of the Directive, as it is presently planned
will create a comprehensive system of prior
restraint virtually unprecedented in our na-
tion's history. We are concerned that this
program is being implemented with unjusti-
fied haste and without any opportunity to
consider the views of Congress.
Although the Directive was issued six
months ago, its skeletal provisions have
been fleshed out through implementing reg-
ulations only within the past four weeks.
We believe that the pre-publication review
program contemplated by the Directive
should be undertaken only after fair consid-
eration of congressional views. Congress has
not yet had a chance to express those views.
We do not
ment the
heard.
October 90, 1983
understand the haste to imple-
Directive before Congress is
In addition, a program of this magnitude
should not be undertaken unless its necessi-
ty is clearly, demonstrated. The evidence
that was presented at the hearing of the
Committee on Governmental Affairs on
September 13 does not allay our concerns
on this score. We learned then that the Ad-
ministration sought to justify a program of
prior restraint that will ultimately affect
thousands of former officials on the basis of
a record of one or two known unlawful dis-
closures by former officials over the past
five years. On this slim record, we have seri-
ous doubts about the need for any expan-
sion of pre-publication review.
Should implementation go forward, we'be-
lieve this Directive may curtail the constitu-
tionally protected expression of thousands
of top-level former government officials-
those best able to enhance public debate-
and may strike at the heart of the public's
right to be informed.
For these reasons., we urge. you, to. delay
implementation of the Directive pending
further consideration of this important
issue by Congress. We intend to request ad-
ditional bearings in the Governmental Af
fairs Committee, and understand that simi-
lar action is planned in the House of Repre-
sentatives. We believe that many of our col-
leagues share our concern that a large-scale
program infringing on important First
Amendment rights should not be imple-
mented without meaningful consultation
with the Congress.
With best wishes.
Sincerely.
CHARLES MCC. MATHIAS, Jr.,
U.S. Senator.
T o sas F. EAGIZrON,
U-S Senator.
Mr. GOLDWATER. Did the Senator
ever receive an answer to that letter?
Mr. MATHIAS. Well, we got one of
those White House answers.
Mr. GOLDWATER. Well, I do not
know how you define it.
Mr. MATHIAS. Even Senator Goi.n-
WATER has had those White House an-
swers, I guess, although you ought not
get-them.
Mr. GOLDWATER. Do not get me
started
[Laughter.)
Mr. MATHIAS. Let me just read the
operative line. It is only two sentences
long:
Your letter has been brought to the Presi-
dent's direct attention and is now being
shared with the appropriate advisers for a
thorough study and review.
You know what that means?
Mr. GOLDWATER. Well, not exact-
ly.
Mr. MATHIAS. You have a
idea.
Mr. GOLDWATER. I have a
idea.
Mr. MATHIAS. So as a result of the
fact that we got that answer, we ended
up here on the floor today.
Mr. GOLDWATER. May, I ask an-
other question on the same point?
Have you ever received an answer that
makes a little sense?
Mr. MATHIAS. No.
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October 20, 1983 CONGRESSIONAL RECORD - SENATE
Mr. GOLDWATER. Well, now, could
we pursue this just a bit, because I
said I do not think this merits a full
floor fight, but I do think it is a sub-
ject that should be discussed. I know
my committee would be very happy to
sit down and, while I cannot say with
any degree of certainty, I feel that I
could promise that the CIA and the
DIA would be willing to sit down and
see if we cannot reach some limits to
this whole problem. I think there is a
problem.
Mr. MATHIAS. And I am not pre-
pared to say there is no problem. I
agree. I cannot speak for my cospon-
sors, but I suspect that if we could
have some assurance that the program
would not be implemented prior to the
time that we had been able to make
that kind of a thoughtful study, prior
to the time that we got the answers to
the questions-legitimate questions,
questions such as those the chairman
of the Foreign Relations Committee
just asked-I would prefer the ap-
proach of the Senator from Arizona to
just simply, arbitrary 6-month ban.
But. I would like the Senator from Mis-
souri and the other cosponsors to
speak for themselves on that.
Mr. GOLDWATER. I proposed that
question without having even consult-
ed with my very able cochairman, the
senior Senator from New York, who is
on the floor. I have a strong suspicion
that he would lean in the direction I
have recommended to let us take a
look at this whole thing. Because we
are not just talking about intelligence
matters, we are talking about matters
that occur in every agency of Govern-
ment that somebody might want to
keep secret. And, as you know and I
know, the most used rubberstamp in
this town is that red one that says
"Top Secret."'
. So I would like to ask the Senator if
he would give serious consideration to
the idea of thrashing this out our-
selves without bringing it to a floor
fight. As of now, I do not think it is
worthy of that kind of attention, al-
though I think it has very, very seri-
ous implications. Because once we pass
it as an amendment, you know that a
date certain does not mean a thing.
That is the end of it.
Mr. MATHIAS. Well- I think the
chairman of the Intelligence Commit-
tee makes a good point and one with
which I have sympathy. That is exact-
ly the approach Senator EAGLETON and
I took. We sought to have some kind
of a general meeting in which these
matters could be discussed while we
got the information and as long as we
were assured that the program would
be implemented while we were sitting
in the room. So that we had our chairs
pulled out from under us. But we just
simply have not been able to get any
satisfaction.
Meanwhile, of course, the standard.
nondisclosure agreements have been
released by the Justice Department on
the 25th of August and they were offi-
cially promulgated a few days later.
We are only here out of a sense of
frustration and lack of anyplace else
to go. I think the Senator from Mis-
souri would agree with that.
Mr. EAGLETON. Will the Senator
yield for 30 seconds on Senator GoLD-
W ATER's point?
Mr. MATHIAS. Yes.
Mr. EAGLETON. The difficulty
with the proposal by the Senator from
Arizona is that implementation has al-
ready begun. It is not as if we were
still in spring training or in the bull-
pen and not yet on the playing field.
We are very much on the playing
field, 'and implementation is in proc-
ess.
So we need a postponement or a
delay in order to avoid having imple-
mentation become finalized within a
matter of days, a few weeks at most..
Mr. MATHIAS. I think the Senator
from Arizona is suggesting that we
would have some commitr3ent by the
administration not to proceed with im-
plementation while we have this
agreement.
Mr. GOLDWATER. Let us get it
straight. I cannot commit the adminis-
tration.
Mr. MATHIAS. No, no.
Mr. GOLDWATER. But I think I
can commit certain parts of it.
Mr. MATHIAS. I understand that. I
did not mean that you were speaking
on behalf of the whole administration.
But that if, as a result of this colloquy,
there is somebody-we are not sup-
posed to point to the gallery around
here-but there might even be some-
one in the gallery who could whisper
in the proper ears and we could get
that kind of agreement.
Mr. GOLDWATER. Before I sit
down and before the Senator from
New York speaks to this subject, I do
not think there is any disagreement-I
am addressing this to the Senator
from Maryland-there is no disagree-
ment in the idea that certain informa-
tion disclosed by anybody can be
harmful to our country but, I think,
more importantly than that, the use
of name, rank, serial number, phone
number, address and so forth, can and
actually have worked against the
safety of individuals.
That, I think, is what the President
was addressing himself to. It is what
we in the Intelligence Committee are
constantly concerned with, as well as
is the sponsor of this amendment.
What do we do with the publication of
matters which can be dangerous?
I cannot possibly conceive of 100,000
people working for the Pentagon ever
sitting down and writing anything
except"a check once in a while.
That is one of the results, I think,
that could come from a discussion, a
limitation of what we are talking
about.
Mr. MATHIAS. The Senator is pre-
cisely right. I think it is unfortunate
we have not had that discussion up to
this time.
Mr. MOYNIHAN. Will the Senator
yield?
S 14285
Mr. MATHIAS. May I suggest that I
yield to the Senator from Missouri
who is cosponsor?
Mr. EAGLETON. Would the Sena-
tor like to proceed?
Mr. MOYNIHAN. The Senator said
he would like to yield to his cosponsor,
the Senator from Missouri.
Mr. EAGLETON. I would like to
present my statement at this time.
Mr. MOYNIHAN. Please do.
Mr. EAGLETON. Mr. President, I
join with Senator MATHIAS in intro-
ducing today an amendment to the
State Department's authorization bill,
which would delay implementation of
a provision in the President's National
Security Decision Directive 84. That
directive, among other things, would
require tens of thousands of former
Government officials (with top- secu-
rity [SCI) clearance) to submit for
prepublication censorship a vast
number of their writings on issues of
vital public interest. Severe civil and
criminal penalties are imposed for fail-
ure to submit to this procedure. The
obligation to comply with censorship
will apply to these individuals for life,
presenting an imposition which
amounts to a flagrant and indefensible
violation of the first amendment.
The depth of my concern over the
unconstitutional scope of this directive
is exceeded only by the extent of my
dismay at the haste with which the
administration seeks implementation-
and without meaningful congressional
consideration. While the directive was
issued 6 months ago, only in the past
few weeks have its scope and detailed
provisions become known through re-
lease of implementing regulations.
Two weeks later. the Senate Govern-
mental Affairs Committee held one
preliminary hearing on this issue,
which raised more questions than= it
answered. For this reason, Senator
MATHIAS and I wrote to the President
on September 23, urging him to volun-
tarily delay implementation pending
more thorough congressional review.
We have received no positive response.
In the face of the administration's
apparent rejection of a congressional
role in debate over an unprecedented
Presidential policy of this nature, I be-
lieve Congress is forced to be heard
legislatively. This legislative effort is
patterned after the efforts of the late
Senator Jackson who, only a few
months agog successfully urged delay
of another of the directive's controver-
sial provisions relating to polygraph
examinations. Congress responded to
his leadership by amending the De-
fense Department authorization bill,
providing a temporary moratorium
which would allow fuller congressional
review of the directive's provision. We
believe that a similar halt in 'imple-
mentation of the prepublication
review requirement is even more es-
sential.
There are two substantial and fun-
damental problems that I have with
the President's prepublication review
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S 14286 CONGRESSIONAL RECORD - SENATE
procedure. First, it is most disturbing
because it represents an unwarranted
and unconstitutional extension of the
Snepp principle enunciated by the Su-
preme Court in Snepp v. United States,
444 U.S. 507 (1980). It is vital to recog-
nize just how far beyond all reason-
able limits the President has extended
Snepp.
The Snepp case upheld the prepubli-
cation process in the narrow context
of the CIA and its unique mission.
Frank Snepp, a former CIA agent,
breached the secrecy agreement he
signed by publishing a book about CIA
activities without prior submission for
agency review. The Court found a
"breach of fiduciary obligation" even
though the CIA discovered that the
book did not contain any classified in-
formation, and the Court invoked a
money penalty by establishing a con-
structive trust of the profits from
Snepp's book for the benefit of the
Government.
Extending Snepp beyond its facts-
confined to intelligence agencies-is
not wise policy. Nor is it what the
Court contemplated. Yet the adminis-
tration plunges ahead, broadly apply-
ing the censorship procedure to offi-
cials with SCI access, regardless of
their agency, or whether they are poli-
cymakers or intelligence officers. We
are told that in the Defense Depart-
ment alone, over 100,000 employees
will be affected. This is a substantial
leap from the narrow circumstances
leading to the Court's opinion. Never-
theless, one would have assumed that
since only officials with access to SCI
must submit their manuscripts, the
scope of materials subject to deletion
by the Government would be limited
to SCI.
This is not the -case: the expansion
of Snepp.cbntinues to grow. The direc-
tive requires submission of "all materi-
als, including works of fiction ' ` *
which contain or purport to contain
' ` any SCI" or are "derived from
SCI," (paragraph 5). The-directive also
permits Government reviewers to
delete information that is "classifi-
able" (paragraph 1), or that is "subject
to classification" (paragraph 7). I have
no doubt that a former CIA director,
for example, would know the precise
meaning of these terms, whether or
not a classification stamp appeared on
the documents used in preparation of
a manuscript, but I seriously question
whether others, including many in
this Chamber, would understand the
scope of prohibition contemplated.
The prepublication contract-going
far beyond Snepp and then far beyond
the Government's purported interest
in only SCI-becomes a trap for the
unwary. The net that the administra-
tion has cast with this directive is, I
am compelled to conclude, far wider
than is' proper and necessary and is
therefore unconstitutional.
Our society places great weight on
the first amendement. The Supreme
Court has held that "any system of
prior restraints of expression comes to
the Court bearing a heavy presump-
tion against its constitutional valid-
ity." New York Times v. United States,
423 U.S. 713, 714 (1971). First amend-
ment protection is at its zenith when
restraints on political speech are con-'
templated, as they are here. The cen-
sorship system may well have the
effect of prohibiting citizens from
criticizing their government, thereby
muzzling public debate. One eminent
first amendment scholar espouses the
following view toward threats to
public speech that is most vital to our
form of govenment:
To be afraid of ideas, any idea, is to be
unfit for self-government. Any such sup-
pression of ideas about the common good,
the First Amendment condemns with its ab-
solute disapproval., The freedom of ideas
shall not be abridged.
A. Meiklejohn "Political Freedom"
(1960), at 28. This fundamental con-
nection' between free speech and self-
government was recognized by the Su-
preme Court in the Pentagon Papers
case, presenting a similar conflict be-
tween national security and the first
amendment. In one of the six concur.
ring opinions, two Justices maintained
that:
Secrecy in government is fundamentally
anti-democratic, perpetuating bureaucratic
errors. Open debate and discussion of public
issues are vital to our national health. On
public issues there should be "uninhibited,
robust, and wide-open debate." New York
Times v. Sullivan, 376 U.S. 254, 269-270.
New York Times v. United States, 403
U.S. 713, 722 (1971).
I have, addressed my principal con-
cern that the administration's prepub-
lication review procedure unconstitu,
tionally extends the Snepp case. My
second major objection to the prepub-
lication agreement concerns how it is
enforced. There is no assurance that
each agency's review board will consist
of objective personnel, or that screen-
ing will be neutral and not politicaL A
review board may consciously or un-
consciously take a more restrictive
view of material that is critical rather
than favorable to the agency. More-
over, the dangers of having, for exam-
ple, the Secretary of State in one ad-
ministration have his work reviewed
and censored by his immediate succes-
sors and obvious.
There is no assurance that the
review board will give rapid considera-
tion to reviewable materials. The pro-
cedure is supposed to take not more
than 30 days. Of course, for newspaper
articles, which are invariably time-sen-
sitive, even this delay would be unac-
ceptable. Moveover, the limited but
telling experience we have with the
CIA procedure, in operation for sever-
al years, suggests that contested
review can take months and even
years.
The administration contends that
the agreement is enforced through
voluntary compliance. But I believe
that the administration intends for
the censorship agreement to operate
more coercively. The agreement is
drafted so that the Government and
October 20, 1983
not the individual will make determi-
nations about which materials qualify
for submission- This is because the
standard used to make the determina-
tion is frighteningly nebulous and
only the Government can know what
is intenteJ to be screened. Individuals
simply wiil*not be able to discern the
meaning of the language in the agree-
ment. and may well submit nearly all
their writings-even if they are uncon-
vinced that any materials contain of-
fensive information.
This dangerous practical effect of
the agreement is virtually certain, es-
pecially because an individual's good
faith, reasonable conclusion that sub-
mission is not required, would not pro-
vide a defense to a person facing civic
suit by the Government for unlawful
disclosure. This has the effect of forc-
ing individuals to suspend their judg-
ment, replacing it with the Govern-
ment's. Former Attorney General Civi-
letti, recognizing how the Snepp prin-
ciple may be expanded and miscon-
strued in this and other ;ways, issued
guidelines (quickly revoked by Presi-
dent Reagan) which stated that con-
sideration should be given to the
degree of willfulness involved in an in-
dividual's failure to submit material
This surely would have given this
whole process a greater air of volun-
tariness, and was an attempt to allow,
in the words of former White House
Counsel Lloyd Cutler, "sufficient play
in the joints to accommodate both
governmental and first amendment
needs." The President's directive
allows for no such reasonableness.
The "I know it when I see it," sweep-
ingly broad standard to be applied by
Government censors is simply unac-
ceptable. Floyd Abrams, the noted
constitutional lawyer, made this point
in a recent article in the New York
Times:
Under the new policy, there is no need to
submit for prepublication review material
consisting "solely of personal views, opin-
ions or judgments" on topics such as "pro-
posed legislation or foreign policy." But the
Catch-22 is this: If the opinion even implies
"any statement of fact" that falls within
the range of review, then the material must-
be cleared by the government before it is
published. Since most opinions worth ex-
pressing about American defense or intelli-
gence policies at least- imply some pro-
scribed facts, what the new requirement
amounts to is a massive intrusion of the gov-
ernment into the right of former officials to
speak and of the public to listen.
"The New Effort To Control Infor-
mation," by Floyd Abrams, the New
York Times Magazine, September 25,
1983 at 25. If former officials feel com-
pelled to "err on the side of submis-
sion." or to alter their writings in an-
ticipation of censorship, this, proce-
dure will chill the exercise of free
speech. Such a result will have grave
consequences.
One of America's most cherished
values is an open society where people
are free to speak their minds and to
criticize their government. This open-
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October 20, 1983 CONGRESSIONAL RECORD - SENATE
ness would not survive if the Govern-
ment could screen the views of those
best able to enhance public debate-
the former Government officials. I be-
lieve the active participation of these
people in our country's political dialog
is a precious national resource. We
need to hear from people like Robert
McNamara, McGeorge Bundy, Henry
Kissinger, and Gen. Maxwell Taylor,
just as at some future time, we will
benefit as a nation from the opinions
and writings of Secretaries Shultz and
Weinberger, Judge Clark, and Ambas-
sador Kirkpatrick.
The administration can move for-
ward with a substantial prior restraint
of the first amendment only if it has
satisfied the very heavy burden of
proof required by the Supreme Court.
Even after the Governmental Affairs
Committee hearings, which afforded
the administration ample opportunity
to state its case, my view remains un-
changed: the administration has pro-
duced only a scintilla of evidence sup-
porting its position. It justifies this
censorship program, that will ulti-
mately affect tens of thousands of
former officials, on the basis of a
record of one or two known unlawful
disclosures by former officials over the
past 5 years. There has been no show-.
ing that either case caused major
damage. This is a slim record indeed,
hardly mandating the rigorous and in-
trusive system of Government sup-
pression of information. -
The directive's censorship procedure
is unconstitutionally broad, suspicious-
ly vague and logically indefensible. It
is therefore not surprising that it has
been roundly criticized by the press.
Editorials and articles have uniformly
regarded the directive's provisions as
-dangerous and ill-conceived. "Blighted
public discourse," ' one newspaper
charged it would bring. "Government
veto power over sensitive writings," 2
"stuffing the mouths of any and all
public officials who, like Adam and
Eve, have tasted of the knowledge of
good and evil,"' and "blueprint for
censorship" 4 were phrases others used
to interpret the directive's effect.
Floyd Abrams referred to the directive
as representing "' ? ? a fearful ideolo-
gy that focuses intently on the risks of
information. but not on its benefits
Nor on the perils of suppression." b
Mr. President, a Government policy
that consistently generates such alarm
merits, at a minimum, our closer scru-
tiny. Implementation of the Presi-
dent's National Security Decision Di-
rective 84 simply must be halted to
permit responsible and thorough ex-
amination by Congress. I am not con-
vinced that the President can unilater-
ally, without regard to Congress, sub-
ject former Government officials for
New York Tames editorial. September 22. 1983.
Newsweek, September 26, 1983 at 38.
Washington Post op-ed artaele by Lewis W.
lapbam, March 26. 1983.
? Washington Post editorial. March 21. 1983.
? New York Times op-ed article by Floyd Abrams,
March 22. 1983.
life to a system of prior restraint en-
forced by court injunction, severe fi-
nancial penalties and possibly criminal
sanctions.
I urge my colleagues to support this
amendment which would give us time
to review the risky course chosen by
the President.
Mr. President, I ask unanimous con-
sent that the testimony of George
Ball, as delivered before the House of
Representatives yesterday, be printed
in the RECORD in this point.
There being no objection, the testi-
mony was ordered to be printed in the
REcoaD, as follows:
TzsTIMOtvy of GEORGE W. BALI
Mr. Chairman: I appear here to urge your
committee to express its disapproval of Na-
tional Security Decision Directive-44,
issued on March 11. 1983.
I -do not represent any organization or
other special interest.. 1 have been asked to
testify as an American citizen with eleven
years service in the Executive Branch of the
Government as Undersecretary-what is
now known as Deputy Secretary-of State,
and a brief term as United States Perma-
nent Representative to the United Nations.
I am glad to be here, as I am deeply dis-
turbed by the potential harm that can be
done by that directive as it is now drafted. I
am equally concerned at what it seems to
imply regarding the desire for secrecy on
the part of the present Administration.
The directive requires that persons per-
mitted access to so-called ''Sensitive Com-
partmented Information" (known in the of-
ficia) vernacular as SCI) must sign an agree-
ment to submit all materials, including
works of fiction. that they may propose to
publish or in any manner propose to "dis-
close", if those materials contain or purport
to contain any "information derived from
SCI" or which describe any "activities that
produce or relate to SCI" or any classified
information from intelligence reports or es-
timates. The agreement also applies to "any
information concerning intelligence activi-
ties sources, or methods"-language which,
literally interpreted, would seem to include
such information even though it is not itself
classified. Prior to obtaining a written au-
thorization to disclose, the individual agrees
not to discuss or show the information to
anyone not authorized.
The directive contains no time limitation.
Anyone signing the required agreement
would be bound by it for the rest of his life.
He could not publish or discuss information
he obtained fifty years previously even
though that information may meanwhile
have entered the puullic domain.
If administered as drafted, this directive
would required the establishment of a cen-
sorship bureaucracy far larger than any-
thing known in our national experience
There are. I am told, about 100.000 people
in the government with access to 80 and
that number will cumulatively increase as
new personnel enter the bureacracy and
sign the required agreement.
All persons with authorized access to clas-
sified information and SCI are now required
to sign a nondisclosure agreement as a con-
dition of access. That is, of course, an appro-
priate requirement; but the new directive
goes far beyond that requirement. Its opera-
tive assumption is that no official of the
United States Government-even a Secre-
tary of State or Defense or the President's
National Security Advisor-can be trusted
to exercise judgment as to what information
is covered by the sweeping language of that
censorship requirement and might, if dis-
S 14287
closed, be harmful to United States inter-
ests. After he leaves office he must instead
submit anything he writes that might con-
tain information derived from SCI, or even
classified information, to the judgment of
some junior bureaucrat meticulously follow-
ing rigid regulations. Since. as I know from
experience. no one who has had high re-
sponsibilities in the upper reaches of gov-
ernment for any extended time can possibly
remember the source of all the information
to which he has been exposed in the course
of his duties, he will feel under pressure to
err on the side of prudence and submit sub-
stantially all his writings or even his speech
notes to the censorship apparatus-waiting
for weeks as the cumbersome machinery
clips and deletes anything that.might con-
ceivably fall In the offending classification.
The obvious effect of this directive will be
to discourage anyone who has served the
government In a sufficiently elevated posi-
tion to have access to sensitive information
from participating actively in the public dis-
cussion of American policy, even though he
may be uniquely qualified to offer illumi-
nating comments and advice. The onerous
mechanks of such censorship and the delay
they would impose would render impossible
informed comments on evolving events and
greatly inhibit the bringing to bear of past
experience on the formulation of policy.
Such a prospect is particularly alarming
at the present time, for many-even those in
top positions of policy-have had little if
any prior experience in foreign policy or
any knowledge of our history. Indeed, if one
examines the record of the last few years, it
is appalling to discover how often we have
repeated the same mistakes from ignorance
of our blunders of the past.
I see no reason why this directive should
have been thought necessary. Any abridge-'
ment of the freedom of speech-and par-
ticularly the practice of pre-publication cen-
sorship-runs counter to the genius of our
democratic system; indeed our founding fa-
thers strongly affirmed the principle that a
democracy can govern wisely only in an at-
mosphere of informed public discussion.
The directive in question can be justified
only if its proponents produce compelling
evidence that such an abridgement of free
discourse is absolutely essential. They have
not met that burden of proof; I see no evi-
dence they have even tried to do so.
Obviously we should safeguard sensitive
items of information by reasonable means;
but to shape a prudent policy we must bal-
ance a need for particular safeguards
against the corrosive effect of censorship on
our larger interests. Our current obsession
with the Soviet Union should not lead us to
imitate the very Soviet methods and atti-
tudes our leaders most insistently deplore.
Yet we see this tendency not only in our
preoccupation with secrecy but in other
practices as well. Because the Soviet Union
feels free to interfere with governments
within its own sphere of influence whenever
they show signs of weakening their full alle-
giance to the Soviet system, we show little
scruple in destabilizing governments in our
sphere of influence that display evidences of
Communist influence.
Those In government are often tempted
by the wistful thought that they could more
effectively conduct the nation's business if
the media were content with official public-
ity handouts and did not challenge their
substance. They would be even happier if
those with prior government experience
were-not looking over their shoulder and
subjecting current policy to the test of prior
experience-those hard lessons derived from
trial and error. Moreover, as we have
learned to our sorrow during these past few
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S 14288
CONGRESSIONAL RECORD - SENATE October 20, 1983
years. Administrations are often tempted to
use the classification procedures to conceal
or confuse actions or policies and protect
our pol?,tical leaders from embarassment for
their own follies or misdeeds. So we must be
sure that. in the name of security, we do not
adopt measures that discourage the revela-
tion or discussion of actions and policies
that violate the standards we purport to
follow as a nation. I hate to think of the in-
justices that might be done, the follies that
might be committed, and the messes that
might develop were the Executive Branch to
be able to prevent such public exposure and
the scrutiny of those best qualified by expe-
rience to question policies and actions that
violate our avowed standards and principles.
On the basis of the considerations I urge,
Mr. Chairman, that your committee express
its opposition to the requirement of pre-
publication censorship contained in the
present directive, since the Administration
has, to my knowledge, failed to demonstrate
that the current nondisclosure agreements
are not fully adequate. In addition, I hope
this committee will also express its disap-
proval of the provisions of the directive that
subject all individuals having access to clas-
sified information to submit to polygraph
examinations at the option of the agency
for which they work and permit that agency
to decide what adverse consequences will
result from an employee's.refusal to submit
to such an examination. Only those with ig-
norance of or contempt for our laws and tra-
ditions could have written such a provision.
The courts have consistently held that the
refusal to take a polygraph examination
should not be admitted in evidence. They
have explicitly recognized the fallibility of
such examinations and the injustice that
would follow if a negative inference were
drawn when an American citizen stood on
his rights and refused to run the risks of an
erroneous judgment resulting -from a poly-
graph examination.
For all these reasons, Mr. Chairman, I
hope this committee will strike a blow for.
freedom of public discussion and the avoid-
ance of official coverups by objecting to this
obscurantist directive.
Mr. EAGLETON. Mr. President, I
yield the floor.
Mr. MOYNIHAN and Mr. DENTON
addressed the Chair.
The PRESIDING OFFICER. The
Senator from New York. -
Mr. MOYNIHAN. I thank the Chair.
Mr. President, I rise in support of
the amendment offered by the distin-
guished Senator from Maryland (Mr.
MATEIAS) and his equally distin-
guished colleague, the Senator from
Missouri (Mr. EAGLE TON). I am pleased
to cosponsor this measure which will
postpone the implementation of what
appears to be an unwarranted and
overly broad new system of censorship
of -the writings and speeches of former
Government officials. The delay will
afford the executive branch, as well as
the Congress. as the distinguished
Senator, my revered and beloved
chairman of the Intelligence Commit-
tee, states, an opportunity to consider
the wisdom of this action. I should like
to recount the history of this matter
which clearly demonstrates the need
for this amendment.
On March 11, 1983. the President
issued a directive intended to prevent
unauthorized disclosures of classifed
information through leaks- to news
media. A singular feature of this direc-
tive is that it requires prepublication
clearances of articles and books writ-
ten by policymaking Government em-
ployees after they leave Government.
if they have had access to sensitive
compartmented information (SCI)-
that is, intelligence information to
which access is limited to protect
sources and methods. Suffice it to say
that there are as many as 200,000
people with SCI clearances, including
a large number of executive level.-offi-
cials of the Departments of Defense
and State and the White House-
people who can and do contribute
much to public debate after they leave
office. As .Mr. Floyd Abrams, a distin-
guished authority on the first amend- '
ment observes:
Some of the most important speech that
occurs in our society would be subjected to
governmental scrutiny and that, if the gov-
-ernrnent in power decided that something
could not be written or said, to judicial
review. -. --
For some time, the Central Intelli-
gence Agency and the National Secu-
rity Agency have obliged their former
employees to seek review prior to
public disclosure of any information.
concerning intelligence activities. This
is a reasonable rule given the complete
immersion of their personnel in the
world of secrecy and their perhaps not
altogether keen sense of what is and is
not classified, that merges so much in
their work, and the fact that they do
not work at the levels of policy forma-
tion. There has been no objection to
this restriction on NSA and CIA per-
sonnel.
It is policy formation that is princi-
pally recounted by the memoirs of
former Government officials, not the
carrying out of policy.
Mr. President, although this amend-
ment would not affect the prepublica-
tion review program of the NSA, the
Director of the Agency wrote to us
urging that we reject it. I have in-
quired of the general counsel of the
NSA, has there been a disclosure of
classified intelligence by a former non-
NSA, employee in published writings?
The general counsel believes there has
been one and understandably did not
feel free to give us the details, and we
did not need the details. But one.
Read the front page of the Washing-
ton press or the national press on any
given day and see if you can count as
few as one, given in an-unauthorized
matter.
That is our problem, Mr. President.
Not an open publication, signed, pub-
lished, acknowledged. The executive
branch told the Governmental Affairs
Committee a few weeks ago that it
found only one or two instances in
which former Government employees
disclosed classified information in pub-
lished writings.
What would be a problem is the sti-
fling of free speech with respect to
areas of the utmost public need. The
memoirs of our Secretaries of State
and National Security advisers and
such like have typically argued the
justification for the policies they set
forward. They are policy issues which
continue.
The pattern of these memoirs began,
if I am not mistaken, with James
Madison. who liked writing. President
Grant wrote his memoirs because he
very much needed the money for his
family. President Theodore Roosevelt
never wrote his memoirs as President,
but he kept writing books because he
could not help himself in that regard.
That is one matter with respect to
which he could not exercise his
famous self-control. But since the
Second World War, it has been a pat-
tern of American public discourse that
former officials and often future offi-
cials argue their case when they leave
.Government, sometimes. to justify
themselves-well, always to justify
themselves-(I speak . as one about
which no exception could be made)-
but also to argue that a policy ought
to be continued or, perhaps, in the
case where a policy was mistaken, it
ought to be changed.
There are policies with respect to
continuing relations in the world, and
the debate continues about them.
What these men and women have to
say is relevant to the debate. Their
books are published because they are
read. They are not. always read in the,
number that the publishers have an-
ticipated, if we can believe the ad-
vances that are offered, but they are
read. And they do serve a purpose.
This new secrecy agreement would, as
a practical matter, put them to an end.
It is not just stifling free speech, but it
is limiting public discourse on matters
which we would most wish to see ad-
vanced.
Officials at the Defense and State
Departments and other nonintelli-
gence agencies, while having access to
sensitive information, must and do ad-
dress vital national security issues
without using classified information.
They do this every day at congression-
al hearings, in speeches and press con-
ferences. Moreover, it has not been un-
common for these officials to write
books after they leave the Govern-
ment and to submit, on a voluntary
basis, all or portions of the manu-
scripts for prepublication review by
their former employers.
May I say that this sensible practice
of some of our former leaders suggests
a basis for establishing a system that
relies primarily upon voluntary coop-
eration-one in which compulsory
review is strictly limited to cases in
which the former Government official
knows or is uncertain that his manu-
script contains sensitive classified in-
formation. It strikes me as curious
that the new directive appears to call
for a mandatory, and most likely, inef-
ficient censorship bureaucracy. This
from a President who staunchly op-
poses intrusive big Government, and,
indeed, advocates private voluntary
action, as an alternative to governmen-
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October 20, 1989 CONGRESSIONAL RECORD - SENATE S14289
tal programs, to meet basic social
needs.
Moreover, this call for a censorship
bureaucracy would have little impact
on the leak problem. At recent hear-
ings the executive branch was able to
identify only one instance in the last 5
years of an unauthorized disclosure of
classified information in the writings
of former nonintelligence agency em-
ployees. This is not surprising. Former
officials who participated in public
debate typically do so in open fashion.
In contrast, leaks typically come from
current, anonymous Government offi-
cials.
With something such in mind, on
March 22 1 wrote the President enclos-
ing a more or less routine press report
of that day citing "senior Reagan ad-
ministration" officials and such like
letting us in on details of "low-altitude
flights by U.S. spy planes" flying
about Central America. I said I as-
sumed there would be a "thorough in-
ternal executive branch investigation
of this matter" and asked if the Intelli-
gence Committee might be favored
with a copy of the findings. On May 5,
I wrote a similar letter to the Presi-
dent following additional apparent
leaks of classified information-includ-
ing a National Security Council docu-
ment on covert action in Central
America-in press reports sourced to
administration officials. I have yet to
hear back on the results.
Mr. MATHIAS..If the Senator will
yield on that point, I asked similar
questions in our hearing. I said:
Now. if you really want to get to high
public officials who are making disclosures
of classified information. who are you going
to put at the President's elbow during his
press conferences when he decides to reveal
some national secret?
Mr. MOYNIHAN. As a matter of his
judgment of what is in the best inter-
est of the country.
Mr. MATHIAS. That is right. Let me
say I did not get an answer.
Mr. MOYNIHAN. Nor have I. I
would like sometime, if I can get pre-
publication clearance, to publish my
correspondence with the administra-
tion asking have you looked into the
following in the Washington Post or
New York Times or Los Angeles
Times? We could.write a letter a day
without fear of excessive correspond-
ence because they do not write back.
And we know this.
If the investigative procedures of the
President's March 11 directive are fol-
lowed, I believe the administration will
learn that the sources of leaks are
more likely to be Presidential advisers,
rather than defense, foreign affairs. or
intelligence professionals.
Mr. President. I raised the foregoing
concerns, first, in a speech before the
American -Newspaper Publishers Asso-
ciation on April 25 and, again, in re-
marks on the floor on May 19. It
seemed that the effect of the directive
could well be to strike at the heart of
the ability of the public to be in-
formed about their Government. How-
ever, at the time I spoke, the direc- authorized disclosure-for example.
tive's implementing regulations had leaks. Certainly, a former official may
yet to be written. It was my hope then speak or write in a manner to avoid ex-
that my views, as well as those of press or implied confirmation of such
others, would be taken into account by information. .
those responsible for drafting the im- I offer the foregoing interpretation
plementing rules so that they could to rehabilitate a seriously flawed
accomodate first amendment values. effort to place limits on an unreason-
Mr. President, I regret to say that able and sweeping submission require-
the new standard form secrecy agree- ment. However, unless the executive
ment--the adoption of which was an- branch modifies the agreement or pro-
nounced on August 24-is a significant vides an authoritative interpretation,
disappointment. The nature of the former officials will have to proceed at
former employee's commitment under their peril in speaking out on crucial
the agreement is conveyed in language issues of public policy. I can think of
that challenges the U.S. Senate for ob- no more crucial issue than arms con-
scurity. Indeed. I would go further to trol. Let us suppose that 3 years
say that this language appears to have hence, former Defense Secretary
been modeled on some of the worst ? Weinberger prepares an op-ed piece
written sections of the Internal Reve- containing the following remark:
nue Code. Paragraph 5 requires that a The proposed START Treaty is not in the
former official submit for review any Nation's interest, as National Technical
information he contemplates publish- Means will not permit adequate verification
ing concerning intelligerfce activities- given deception and camouflage techniquesl
even if the information is unclassified Must he submit It to censorship by
and even if it has been 10, 20, or more his successor? I do not believe he
years since his departure from Gov- should be required to do so. Public
ernment service. In an apparent effort debate is enhanced when former
to limit the scope of the submission re- policy officials can promptly and
quirement the following sentence was freely offer an opinion which draws on
included in paragraph 5: their experience, but does not disclose
However. I am not required to submit for classified information. Surely the by-
review any such materials that exclusively pothetical statement does not compro-
contain information lawfully obtained by
me at a time when I have no employmentmise any secrets. It is essentially an
contact or other relationship with the U.S, opinion and the only facts mentioned
Government, and which are to be published are well known to the public: That we
at such time. have satellites that collect information
Mr. President. there can scarcely be on strategic arms and that deception
a doubt that this provision is the work and camouflage techniques can be
of a committee. And a committee of practiced.
lawyers at that. Syntactical awkward- Nevertheless, the former Secretary
ness and negative formulation are could not be certain from a reading of
their hallmark. If the however clause the new nondisclosure agreement that
is given a strict literal reading, it his successor will agree that he is not
means that former Defense Secretary obliged to submit his proposed state-
Weinberger would have to clear a ment. He may not want to take:'the
manuscript quoting and commentating risk that the Justice Department-will
on William Colby's unclassified mem- institute a civil action against him.
oirs of his CIA experience, Honorable Indeed, he may be chilled and forbear
Men, if he (Mr. Weinberger) read the from speaking out. The new agree-
book while he served at the Defense ment does not clearly preclude this
Department; but he would not. have to result. And until it is amended or of fi-
clear the manuscript if he read the cially interpreted to do so it should
book before or after he served as De- not be permitted to go into effect.
Tense .Secretary. It appears as though Therefore, Mr. President, I strongly
some neoscholastic spirit has inspired support the amendment. I would hope
this clause. Surely a system of censor- that the executive branch would take
ship which turns on when a Cabinet appropriate action to remedy its flaws.
Secretary reads open source material is If it does not, I. for one, would support
in the same league with a philosophy a legislative approach.
which speculates about the number of I yield the floor to the principal
angels which can fit on the head of a sponsors of the amendment to see if
pin. But it is not a practicable system. they do not agree with me that we
Nor is it a prudent system. ought to press this amendment, adopt
Now, we are a grownup country. this amendment, enact it, and then sit
This cries for further inquiry. down in good faith with the adminis-
To avoid absurd results, I would sug- tration and say, "Now, what is the
gest that the however clause should be problem you are trying to solve? We
interpreted so as to preclude any sub- want to solve it with you." In the In-
mission requirement if the former offi- telligence Committee, we have just re-
cial publishes material which merely ported out a bill authorized by the dis-
cites or draws on information in the tinguished chairman which does.
public domain-that is, which is ob- indeed, provide further restrictions on
tained or obtainable while he is not Freedom of Information Act access to
employed by the Government. Of documents of the Central Intelligence
course, classified information may be Agency. We felt that there were cer-
in the public domain as a result of un- tain areas the acts search and review
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S 14290
CONGRESSIONAL RECORD - SENATE October 20, 1983
requirements inhibited the work of
the Agency, inhibited cooperation with
it by other intelligence services and we
did not want a third of the employees
of our intelligence community going
through files only to demonstrate that
there was no meaningful information
that could be declassified and released
to the public. We did it then. And we
could do it here, or so it seems to me,
but first we must prevent this new pre-
publication review requirement from
going into effect; for it is a violation of
our constitutional values, if not of the
Constitution itself. That is my judg-
ment. Mr. President, I yield the floor.
Mr. MATHIAS. Mr. President, let
me briefly respond to the Senator
from New York. I agree with him that
we cannot- allow this implementation
of National Security Decision Direc-
tive 84 to go into effect. without at
least an opportunity to find out what
kind of damage it is going to do.
Now, the Senator from New York
has said that he has written books. He
has been very modest in his descrip-
tion of them. They are informative,
useful, and readable books which is
more than can be said for many pub-
licly authored volumes that come out
these days. But take the Senator him-
self. He has been exposed to a level of
intelligence information that would
bring him within the purview of this
provision if it is going to be imple-
mented more broadly than the present
narrow limits that cover the Central
Intelligence Agency and other intelli-
gence agencies. Even I in my modest
way have been exposed - to some of
these sources of information.
Now, how do you handle a Secretary
of State's memoirs? The chairman of
the Foreiglq Relations Committee
asked that- question. Who is going to
censor George Shultz' memoirs? Is it
going to be a friendly censor in the
next administration or an unfriendly
censor in the next administration?
Mr. MOYNIHAN. Would the Sena-
tor allow me to make the observation.
Or might it be George Shultz censor-
ing his own writing out of a sense,
well, he did make that commitment
and as an honorable man he will abide
by it as little as he might think it a
sensible one.
Mr. MATHIAS. That is. of course, a
part of the chilling effect of this sug-
gestion. We simply do not know enough
about it yet, and that. is the whole pur-
pose for being here today. We simply
want more time to find out what
really is involved.
Mr. DENTON addressed the Chair.
The PRESIDING OFFICER. The
Senator from Alabama is recognized.
Mr. DENTON. I do not wish to try
to gainsay all the opinions offered by
either the distinguished Senator from
Maryland or the learned Senator from
New York, but I must register some
disagreement with the amendment
being proposed with information and
opinion from those who are in position
to judge this sort. of matter.
I am sure that the two Senators are
aware of the letter to the Senator
from Maryland from the Director of
the National Security Agency. Previ-
ous mention has been made by their
counsel referring to one case and the
fact that very few details were offered
about it. I do not wish to sound at all
condescending in this remark, but
after 34 years in the military I am
aware of hundreds of cases in which
had the leak been identified great
harm would have been avoided. Usual-
ly this is a combination of perhaps 2-
to-10 pieces of information which in
themselves might constitute no threat
to the national security.
Mr.- MATHIAS. Would the Senator
yield for a brief comment?'Just so that
we have the focus of this amendment
previse,'we are not talking about leaks.
Mr..DENTON. I realize that. -
Mr. MATHIAS. We are not talking
about leaks. We are talking about pub- -
fished materials of former officials.
Mr. DENTON. But the same ration-
ale applies with respect to the re-
sponse you received which lacked de-
tails regarding the examples of what
had happened in the past. That is why
I made the remark. I am aware of
what the amendment consists of.
Mr. MATHIAS. The Senator, of
course, is entitled to his view of that.
But I cannot believe'that the officials
of the Department of Justice, the De-
partment of State, and the Depart-
ment of Defense, appearing as wit-
nesses before a congressional commit-
tee, would say that there had been
only one confirmed case if there had
been more.
Mr. DENTON. I did not mention
only one case. You said that.
Mr. MATHIAS. The witnesses before
the committee said that.
Mr. DENTON. According to this
letter, there is a discrepancy, which
the letter indicates. The letter from
the National Security Agency Direc-
tor, Lt. Gen. Lincoln D. Faurer, reads:
Dear Senator Mathias: The purpose of
this letter is to express my concern about an
amendment to the Foreign Relations Au-
thorization Act for 1984 which you recently
introduced. The effect of the amendment.
as I understand it, would be to preclude the
implementation or enforcement of a govern-
ment prepublication review policy with re-
spect to government employees, at least
after they have left government service.
except as such policies may have been in
effect on March 1, 1983. As you are aware, a
general program requiring individuals with
access to Sensitive Compartmented Infor-
mation (SCI) to submit intended disclosures
for prepublication review was instituted in
March. The purpose of the amendment ap-
pears to be to preclude implementation of
this program. Since, in my opinion, the pre-
publication review program applicable to in-
dividuals with access to SCI is useful for the
protection of National Security Agency in-
formation, I am naturally apprehensive over
the possible adverse effect of the amend-
ment. _
The next paragraph is important:
NSA has had in effect for some years reg-
ulations establishing a prepublication
review program for NSA personnel; this pro-
gram would not be affected by the amend-
ment. However, the genera) extension of a
prepublication review program to recipients
of NSA information only commenced as a
result of the March 1983 directive. If imple-
mentation of the directive is halted. many
persons who receive our most highly classi-
fled signals intelligence information would
be excused from obligations now in effect to
submit materials for prepublication review.
Our experience has been that most unau-
thorized disclosures of classified signals in-
telligence are by non-NSA personnel. and,
based on this experience. I have considered
the general prepublication review program
for individuals with SCI access throughout
government to be a significant step in pro-
tecting sensitive intelligence sources and
methods.
He continues in that vein.
I do not wish to presume upon the
wisdom or the judgment of the Sena-
tors who have been speaking in favor
of the amendment. I have asked with
good will of the Senator from Mary-
land and he, in good will, responded,
that on behalf of the Justice Depart-
ment, which -is trying to accumulate
examples which might be sufficiently
convincing, we should postpone until
Monday next the consideration of this
amendment.
The Senator from Maryland re-
sponded that he would concur if I
could get an approval from the floor
manager of the bill.. However, I was
unable to do so. The distinguished
chairman of the Foreign Relations
Committee wishes to finish his bill
today-wanted it through, as a matter
of fact, as of 1 o'clock today-so-we are
at some kind of stalemate.
I should like to offer further infor-
mation in opposition to the amend-
ment.
Mr. MATHIAS. Mr. President, will
the Senator yield?
Mr. DENTON. This will take only a
few minutes.
Mr. MATHIAS. It might be useful to
make a comment or two on the NSA
letter while that subject is up.
Mr. DENTON. May L finish?
Mr. MATHIAS. Yes.
Mr. DENTON. I recognize that the
Senator from Maryland has more per-
spective on the NSA letter.
Mr. MATHIAS. Let me say one
thing at this point, because it seems to
be a personal concern of the Senator
from Alabama. He said that perhaps
the Department of Defense, the De-
partment of State, and the Depart-
ment of Justice were reluctant to dis-
close publicly their concerns about
some disclosures.
Mr. DENTON. No, some details
about previous examples.
Mr. MATHIAS. I want the Senator
to know that at the hearing, we invit-
ed each of those Departments to make
a classified submission on anything of
that sort they knew about, which
would be held in confidence in accord-
ance with the classification law. Not
one word of reply was received.
Mr. DENTON. I have heard recently
that few regard a Senate hearing room
as a confessional. Without any reflec-
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October 20, 1983
CONGRESSIONAL RECORD - SENATE . . S 14291
'.ion upon any of us. there have been a
number of leaks from staffers and
others in this body and in the House
of Representatives.
Mr. MATHIAS. The reputation of
Senator GOLDWATER'S committee has
been excellent. They have been the
trustees of the highest secrets of this
Government.
Mr. DENTON. I do not deny that.
Mr. MATHIAS. I do not think we
can accept an implication that there
have been Senate leaks.
Mr. DENTON. I believe there have
been Senate leaks, not necessarily
from that committee, but I believe
there have been leaks from both
Houses. I might have been the source
of one, myself.
My book was submittted to the De-
partment of Defense voluntarily, and
they found inadvertent disclosures in
it. I voluntarily assented to the dele-
tions of those portions from the book.
I agree with sunshine in Govern-
ment. I assure my colleagues that op-
position on my part to this amend-
ment is not arbitrary. It is one born.in
the knowledge that men have died be-
cause of inadvertent disclosures.
Let me offer one example. I admit
that it is a little beside the point, but I
believe it will be informative and rela-
tive.
Before the raid on Vinh during the
Vietnam war, in retaliation for some-
thing that had been done to our side,
the President of the United States
went on the radio and television, mis-
takenly thinking that he had been in-
formed by the carrier commander that
the strike had been launched against
Vinh. He thought that the carrier
commander, in saying: "The strike has
been launched," meant that the planes
had hit the-target.
So the President went on the air and
said to the world: "We have struck
Vinh."
We had not struck Vinh. The planes
were en route. The antiaircraft batter-
ies were alerted, and we lost some good
men that day by an inadvertent
remark by the President of the United
States. I think this example regarding-
security requirements should be con-
sidered.
But I ask that we not try today to
impose a 6-month delay without fur-
ther consideration of the matters by
the whole Senate.
Mr. MOYNIHAN. Mr. President, I
say to the gallant Senator from Ala-
bama, who has earned the respect of
this Nation as few men in our time,
that we are not talking about the inad-
vertent mistake of a President, and we
are not talking about the well- or ill-
intentioned disclosure of information
.by persons in office secretly to the
press. We are talking about books and
articles published.
Mr. DENTON. That is why I offered
the example of my book.
Mr. MOYNIHAN. And we are talk-
ing about books and articles published
by persons not perhaps with the
degree of intense sense of Nation and
honor that the gallant Senator from
Alabama brings to this Chamber, as he
brought to his career, but honorable
men and women not intending any
harm to their Nation.
NSA and the CIA have to do this be-
cause much of what their employees
deal with is simply technical; and if
adversaries know what we know, then
we have lost what we know.
I understand the one case cited by
NSA involved a former contract em-
ployee. I do not know, but I can imag-
ine that he was involved in some very
sensitive activity and may well have
given a paper at the American Society
of Engineers.
But that is not the leak problem.
Our problem is the deliberate disclo-
sure of sensitive information by per-
sons within Government, some of
them -intending to -advance the pur-
poses of administration, some willing
to block it.-You typically find that
there is a policy fight going on. That is
a problem of morale and self-regard
and standards. That is not what we
are dealing with here. We are dealing
with the inhibition of free speech
which is what the published material
is.
Mr. DENTON. Mr. President, will
the Senator yield?
Mr. MOYNIHAN. I am happy to
yield.
I yield the floor.
The PRESIDING OFFICER (Mr.
HECFrT). The Senator from Alabama,
Mr. DENTON. Mr. President, I am
personally happy to hear the consid-
ered and very generous remarks re-
garding me personally.
I would say that if anything my in-
advertent disclosure, which would
have gone through and done this
Nation. some harm, as the Senator
-says, came from someone who was at
least trying to be honorable but made
an error. If my book ? had been pub-
lished with that information there, it
would have done harm to the security
interests of the United States.
The review only took a few days. I
now wish to offer the statistics regard-
ing prepublication reviews which have
taken place so far.
There seems to be an implication of
great delays, but the statistics which I
offer today are to the contrary. The
directive, in fact, requires the review
to be conducted within 30 days of sub-
mission.
Last year, for example, the CIA con-
ducted 213 such reviews and complet-
ed the same within an average of 13
days.
For short writings, the reviews were
conducted in a manner of hours.
I have heard suggested that to date
the administration has cited only one
or two instances in the past 5 years in
which former officials of State. Jus-
tice, or Defense Departments have re-
vealed classified information without
authorization.
The fact is-that since 1977 some 929
items have been submitted to the CIA
for prepublication review, of which
241 contained classified information
that was protected by the directive
and was accordingly deleted.
I believe that all 241 of those exam-
ples were written by men who were at
least as honorable as I and indeed per-
haps as honorable as the Senator from
New York.
In addition, many Government em-
ployees who did not necessarily have
access to sensitive compartmented in-
formation, voluntarily submit writings
for prepublication review. -
In conclusion, at this point let me
just say that I firmly believe that clas-
sified information must be protected
from even an inadvertent disclosure
from those within our Government
who have lawful access. I believe it can
be overdone. I believe that the NSA
Director is not a politician nor a man
who is interested in promoting or de-
fending the administration politically.
I believe he is speaking in the national
interest as he sees'tt when he objects
to a 6 months unilateral congressional
delay in that which the executive
branch has found in the national in-
terest regarding unauthorized disclo-
sure.
I plan to vote against this amend-
ment and encourage my colleagues to
do the same. I believe we must delay
until Monday and hear the whole case
from -those who are trying to protect
our security but have not yet gathered
their material together.
But I feel we will be acting unwisely
if we adopt this amendment with the
little information we have at this
point.
Mr. President, I oppose this amend-
ment to the Department of State Au-
thorization Act, S. 1342, proposed by
the senior Senator from Maryland,
This amendment attempts to delay
the implementation of National Secu-
rity Directive No. 84, entitled "Safe-
guarding National Security Informa-
tion," which was signed by the Presi-
dent on March 11, 1983. Of particular
concern, apparently, to the Senator
from Maryland, is paragraph lb,
which requires all persons with au-
thorized access to sensitive compart-
mented information (SCI) to sign a
nondisclosure agreement which "in-
cludes a provision for prepublication
review to assure deletion of SCI and
other classified information."
The Senator from Maryland con-
tends that such nondisclosure agree-
ments requiring prepublication review
violates the former employees' first
amendment rights to free speech.
In fact, the Supreme Court has re-
cently upheld the constitutionality of
prepublication review for CIA employ-
ees in the case of Snepp v. United
States, 444 U.S. 507 (1980).
The protection of the national secu-
rity information is a primary and fun-
damental-constitutional responsibility
of the President that derives from his -
responsibilities as Chief Executive,
Commander in Chief, and the princi-
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CONGRESSIONAL RECORD - SENATE October 20, 1988
pal instrument of U.S. foreign policy.
Agreements to preserve the secrecy of
classified information are an appropri-
ate method for the President to dis-
charge these constitutional responsi-
bilities.
The Senator from Maryland also
contends that the implementation of
this directive would affect tens of
thousands of officals in the State,
Justice and Defense Departments.
Indeed, this directive will apply to ap-
proximately 130,000 employees, most
in the Department of Defense, who
have access to sensitive compartment,
ed information (SCI). SCI is a-ca.tego-
ry of classified information that is sub-
ject to special access and handling re-
quirements because it involves or de-
rives from particularly sensitive intel-
ligence sources and methods. The
power to require the signing of such
an agreement as a condition of access
to SCI is supported by the statutory
authority of the director of Central
Intelligence to protect intelligence
sources and methods, 50 U.S.C. Sec.
403(d)(3), as well as the more funda-
mental constitutional responsibilities
of the President regarding national se-
curity.
The sponsors of the amendment also
contend that employees covered by
this agreement will have to submit for
review a -`broad range of their writings
of public issues" in perpetuity.
In fact. such employees are only re-
quired to submit writings which in-
clude information relating to specified
intelligence matters.
The Senator from Maryland alleges
that this program of prepublication
review will allow the administration in
power to censor views of those former
top-level people with whom they may
disagree.
In fact, as I noted before, only classic
fled information can be deleted. Judi-
cial review is provided, and the Gov-
ernment must be able to demonstrate
in court that all deleted material is
properly classified pursuant to Execu-
tive Order 12356.
There is also a suggestion from the
sponsors of this amendment, that pre-
publication review will keep authors
from publishing their views in a timely
manner.
In fact, the directive requires the
review to be conducted within 30 days
of submission- Last year, for example,
the CIA conducted 213 such reviews
and completed the same within an
average of -13 days. For short writings,
the reviews were conducted in a
matter of hours. -
The Senator from Maryland also
suggests that to date, the administra-
tion has cited only one, or possibly
two, instances in the past 5 years in
which former officials of the State,
Justice, or Defense Department have
revealed classified information with-
out authorization.
In fact, since 1977, some 929 items
have been submitted to the CIA for
prepublication review, of which 241
contained classified information that
was protected by the directive and was accordingly deleted. In addition, many government employers who do not necessarily have access to sensitive compartmented information, voluntar- ily submit writings for prepublication review. Indeed in 1976 before the pub lieation of my book dealing with my experiences as a POW in North Vietnam. I voluntarily submitted the same for clearance and deletions were made. Mr. President, in conclusion, let me just say that I firmly believe that clas- sified information must be protected from even an inadvertent disclosure by those within our government who lawful access. The' President must be allowed to take the necessary step to fulfill his constitutional dutyto safeguard the national security by safeguarding classified information.Any infringement of the President'sability to control the continuing unau- thorized ? disclosures would only en= courage additional -unauthorized dis-
closures and thereby threaten our na-
tional security. Therefore, I plan to vote against this amendment and would encourage my colleagues to do the same. I thank the Chair. Mr. MATHIAS. Mr. President, let me say to the Senator from Alabama that is is not the desire of the sponsors this amendment to delay on any ar-
bitrary and fixed basis. As we said before the Senator en-
tered the Chamber, the Senator from Missouri and I wrote to the President on September 23 and suggested that we -try to find some meeting of the mind, some chance to at least get the questions answered that have not yet answered, and in all fairness to delay implementation until we have the answers. That might -take 6 weeks or 6 months-I do not know-or some time in between.
But it would be at least a more flexi-
ble way to do it, and that is, in essence, what was proposed by the chairman of the Intelligence Committee, SenatorGOLDWATER.
Speaking only for myself, it would be agreeable to me as long as we had a commitment that implementation be suspended during these dis-
cussions. I think it would be the -pref- enable, the more civilized way to prof am disappointed that we had so little cooperation in trying to move down that road. But that is the case. Let me just address myself for one moment to the National Security letter. Mr. DENTON. Mr.. President, if the Senator will yield, may I ask a ques-tion? Mr. MATHIAS. Yes. Mr. DENTON. Mr. President, if we could not receive the permission of the floor manager of the bill to delay until Monday, could this not be offered as a freestanding bill next week? Mr. MATHIAS. That would take unanimous consent. I do not know whether or not such a unanimous con-
sent is available or not. But it is some
thing that could be explored. Again. I
wish to offer the ultimate cooperation
of which Z am capable to the Senator
from Alabama.
As the Senator from Arizona said,
this is not something that we should
go to the mat on
Mr. DENTON. The Senator is cor-
-
rect, and the Senator offered some ex
cellent examples.
.
Even in my short time here; I have
been aware of delay from the execu
tive branch in answering questions. I
realize they, as we, are somewhat over-
our staffs in answering
workedwith
questions, , and so on.
I believe we could reach a reasonable
approach among all parites. The Sena-
tor from Maryland has spurred the ad-
ministration on and has been the cata-
lyst. I think he is going to get the an-
savers he wishes. I only ask for a few
days to allow the administration to
present
Senator from Alabama has mentioned
Agency. Let me
the National Security
say to him that I agree with him fully
in his estimate of that Agency. I think
is one of the most extraordinary
it
of the U.S. Government. It
agenices
been my pleasure to know the
has
Directors of the Agency.
successive
Without exception, men drawn from the uni-
formed
in a very
field.
difficult and demanding
I think we should put
In fairness,
Director's letter of October 20 in
the
I ask unanimous con-
the Rscoao, and
in the Rzconn
sent to have printed
that letter.
.
no objection, the letter
There being
to be printed in the
was ordered
as follows:
RECORn,
AGENCY,
NATIONAL SECURITY
CENTRAL SECURITY SERVICE
de Md., October 20, 1983.
Fort Mea
Hon. CHARLES MCC. Mnrm*s.
U.S.
Senate.
Washington D. G
mIAS: The purpose of
DEAR SENATOR MA
letter is to express my concern about an
this
to the Foreign Relations Au-
amendment
thorization 1984 would be to preclude the
implementation or enforcement of a govern-
review meni .prepublication review policy with re-
spect to government employees, at least
government service,
after they have left
as such policies may have been in
except
on March 1, 1983. As you are aware, a
effect
program requiring individuals with
general
access to Sensitive ve Compartmented Infor-
mation (SCI) to submit intended disclosures
review was instituted in
for prepublication
March. The purpose of the amendment ap-
pears to be to preclude implementation of
program. Since, in my opinion. the pre-
this
program applicable to in-
publication review
with access to SCI is useful for the
dividuals
of National Security Agency in-
protection
I am naturally apprehensive over
formation,
adverse effect of the amend-
the possible
ment.
in effect for some years reg-
NSA has had
a prepublication
ulations establishing
program for NSA personnel: this pro-
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October 20, 1983
CONGRESSIONAL RECORD - SENATE S 14293
gram would not be affected by the amend-
ment. However, the general extension of a
prepublication review program to recipients
of NSA information only commenced as a
result of the March 1983 directive. If imple-
mentation of the directive is halted, many
persons who receive our most highly classi-
fied signals intelligence information would
be excused from obligations now in effect to
submit materials for prepublication review.
Our experience has been that most unau-
thorized disclosures of classified signals in-
telligence are by non-NSA personnel, and,
based on this experience, I have considered
the general prepublication review program
for individuals with SCI access throughout
government to be a significant step in pro-
tecting sensitive intelligence sources and
methods. Accordingly, while, a$ stated, NSA
personnel would not be affected by the
amendment, the protection of NSA informa-
tion could be, and as I believe signals intelli-'
gence to be of vital importance to the
United States. I trust you can understand
my concern that the Congress might enact,
the amendment.
Sincerely,
Lrxcou D. FAUREa,
Lieutenant General, USAF,
Director, NSA/Chief, CSS.
Mr. MATHIAS. Mr. President, when
the letter is perused, it will be clear, as
the Director says, that NSA is-not af-
fected by this amendment. I should
add at this point that neither is the
Central Intelligence Agency affected
by this amendment. Each of those
agencies has its own programs and
those programs would not be inter-
fered with in any way by what we are
talking about today, the 6 months'
delay.
I do think that the Director has per-
haps gone as far as he could go in stat-
ing the extent to which the directive
has already been implemented. After
all, the standard forms were not pro-
mulgated until ;late August. So I sus-
pect that if. ahy of what he called
signal intelligence consumers have in
fact undertaken any obligations that
were not applicable prior to the issu-
ance of the directive, those obligations
have not changed very much.
I do not follow what he is trying to
tell us when he says that this amend-
ment would excuse many consumers
from obligations now in effect because
I do not see it that way.
But whatever he means by that, I
would turn to the point that all we are
seeking here is a delay. The only intel-
ligence consumers directly affected are
those who happen to leave Govern-
ment service between now and April
15, which probably is not going to be a
very large body of men and women. It
is going to be a fairly small group.
Mr. DENTON. May I hazard a ques-
tion and suggest what he might mean?
Mr. MATHIAS. Yes.
Mr. DENTON. I admit it may not be
direct. By Executive order apparently
the appropriate agencies have been
getting prepublication review from
those to whom they give highly classi-
fied intelligence information. The
effect of the Senator's amendment, by
its explicit exclusion of anyone except
the CIA and NSA, might be the
hazard to which he refers.
Mr. MATHIAS. That is a possible in-
terpretation, but I think the most im-
portant thing that the Director says -is'
the thing that reinforces what the
Senator from New York has also said.
I refer to that line in the letter in
which he says that our experience has
been that most unauthorized disclo-
sures of classified signal intelligence
are by non-NSA personnel.
And I think leaks come from any-
where and it is leaks that are the prob-
lem. Leaks, of course, are usually
anonymous. No one knows who makes
a leak unless it is the President or the
Secretary of.Defense or someone leak-
ing deliberately, but the great volume
of leaks are anonymous. When they
appear, no one.knows who the source
was, and we have a great flurry.-We
stir around, members of the press are
asked to produce their notes, they
refuse, and ultimately we seldom find
out who is the leaker. But-in the cases
we are talking about-the cases de-
scribed by the Senator from Missouri
and the Senator from New York-we
are talking about people who publish,
who sign their writings, who put their
pictures on the back jacket of their
books in the hope that their hand-
some faces will help sales, and who are
subject to the criminal law. These are
not people who will get off scot-free if
they disclose classified information.
The U.S. attorney can rap on their
door the day after they have had the
publisher's party and haul them into
court.
So let me say to the Senator from
Alabama it may well be, and I would
not stand here and -deny, -that we
should tighten up the criminal law in
this respect. That is a subject for an-
other discussion.
Mr. MOYNIHAN. It is a subject we
can discuss, if I may say, in the confer-
ences that we are proposing.
Mr. MATHIAS. That is right. It is a
subject that can be part of the-overall
general discussion. But those are the
ways in which I think you -deal with
the problem ?of. the distinguished
former officials of Government who
write a book. You are not dealing with
the clandestine anonymous leaker who
does so much damage, and I think that
simply giving us time to talk about
this is in the national interest. I do not
in any way want to rebuke the state-
ments of the current Director of the
National Security Agency, but let me
say that one of the witnesses in our
committee was Admiral Gayler, a
former Director of the National Secu-
rity Agency himself. I do not want to
characterize his testimony, because it
is a matter of public record and can be
read. But I think it is fair to state that
he had some serious reservations
about National Security Decision Di-
rective 84.
Mr. DENTON. Mr. President, I ask
the gentleman questioning the NSA
letter here, if It is not to be under-
stood that NSA found good reason to
implement the March 1983 directive
which caused the prepublication
review program to extend to recipients
of NSA information. The letter says if
that review is halted it is going to
cause great problems. He is talking
about books just as you are, prepubli-
cation review of books. So he is not
talking about leaks which come from
other sources, but leaks which appear
in books, and I think the result of this
amendment would by exclusion
remove that directive which the ad-
ministration found necessary to imple-
ment.
I respect the motives and the exper-
tise of the Senator from New York
with this tremendous experience in
this field, and the Senator from Mary-
land for his integrity and his concern
over the national-'gecurity, but I re-
quest them to consider from the point
of view of prudence that we learn a bit
.more' about what the NSA letter
means before we take this step of 'de-
laying for 6 months the extension
which these security-responsible
people have found desirable.
Mr. MATHIAS. I can only repeat
that I am willing to talk as long as the
Senator wants as long as we can get an
agreement not to implement the pro-
gram.
? Mr. DURENBERGER. Mr. Presi-
dent. the amendment before us is nec-
essary because of a Presidential direc-
tive that carries the risk of severe
abuses.
My concern is a provision in that di-
rective that would subject all holders
of a sensitive compartmented informa-
tion clearance to a lifetime require-
ment of prepublication review for all
their writings-both fiction and non-
fiction from books to letters to the
editor-that deal with possibly classi-
fied information or intelligence activi-
ties. Such a massive prepublication
review requirement 'seems sure -to
result in serious time delays in publi-
cation. and it could all too easily be
used in a political manner.
The first amendment concerns that
this provision of the Presidential di-
rective raises were summed up admira-
bly by Richard P. Kleeman, senior vice
president of the Association of Ameri-
can Publishers, in testimony to two
House committees:
The Directive threatens to have an espe-
cially deleterious impact on the writings of
former government officials. New Adminis-
trations will be empowered to pass upon the
writings of those whom they replaced. The
latitude afforded under the Directive will
inevitably invite both delay in publishing
and politically motivated excisions which
will have the effect of harassing those who
would criticize their political successors.
Whether what will be lost is timely debate
of foregone publishing opportunities, the
loss under the First Amendment will be in
calculable.
It is true, of course, that CIA person-
nel are already required to submit
their writings for prepublication
review. Intelligence personnel tend to
learn many more details about highly
sensitive intelligence' sources and
methods than do the personnel-of
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S 14294
CONGRESSIONAL RECORD - SENATE October 20, 1983
policy agencies, so a prepublication
review system is more defensible for
the CIA. My understanding is that our
intelligence agencies see no problems
with the amendment before us, as
their procedures were established
before March 1. 1983, which is the
cutoff date under this amendment.
It is. much harder to justify a pre-
publication review system for the vast
numbers of nonintelligence personnel
with access to sensitive compartment-
ed information. I have heard com-
plaints about the publications of ex-
intelligence personnel, but I have not
heard the same national security con-
cern regarding the writings of -former
policy officials or military personnel
Given the real. question of whether
this system is needed and the real con-
cern that prepublication review could
exert a chilling effect on Important
policy debates. I think Congress
should take a careful look at this issue
before allowing imposition of this
system.
I urge all my colleagues to join me in
supporting the Mathias amendment
and to ponder the concerns that have
been raised regarding this Presidential
directive. Mr. President, I ask unani-
mous consent that the editorial "Cen-
sorship and National Security" from
the Minneapolis Star & Tribune be in-
cluded in today's REcoan.
The editorial follows:
[From the Minneapolis Star & Tribune,
Apr. 18. 1983]
CENSORSHIP AND NATIONAL SEcmurY
President Reagan's new executive order
on the handling of national security infor-
mation creates a dangerous system of cen-
sorship. It threatens democratic control of
government by restricting public debate
about important national issues. It is an at-
tempt to -squksh civil liberties under the
guise of protecting the nation. -
Among other things, last month's direc-
tive requires high-level government employ-
ees with access to classified material to
promise to submit for prior government ap-
proval anything they write based on their
government experience. That requirement
applies not only while employees remain in
government service, but for the rest of their
lives. It applies not only to manuscripts that
discuss sensitive government activities, but
also to innocuous fiction and satire. The
penalties for failing to comply-whether or
not a manuscript contains classified infor-
mation-include confiscation of all profits
from publication.
The secrecy order covers senior officials in
federal agencies, in the military and in the
foreign service, as well as top White House
officials and members of the National Secu-
rity Council staff. Under the new system.
none of them will be able to publish a book,
make a speech or send a letter to the editor
without government permission. Govern-
ment censorship panels will make the final
decision about what can be said or pub-
lished. The writer can fight that decision in
court. an expensive and time-consuming en-
deavor. , -
Until now, such a clearance system has
been used only within the CIA, where safe-
guarding sensitive intelligence data might
justify it. But the new order extends censor-
ship into all areas of government. If this
program had been in effect in the past.
scores of former public officials would now
feel its chill The memoirs of Henry Kissin-
ger. Richard Nixon. Zbigniew Brzezinski and
Jimmy Carter would be subject to censor-
ship by their successors. Speech texts and
articles by Melvin Laird. Eugene Rostow, Al-
exander Haig and Edmund Muskie would
have to be cleared before they could be re-
leased. Journalists, political candidates, col-
lege professors and lobbyists who once held
government office would be allowed to
public only government-approved ideas
about government affairs
The censorship scheme is ridiculous and
perilous. Experience with the CIA's review
panels has shown that government censors
are just as likely to suppress embarrassing
facts and undesirable -commentary as legiti-
mate secrets. And that is the real trouble
with Reagan's order. It could be used to pre-
vent one-time government officials from
criticizing current government policy. It
could keep the nation's most knowledgeable
analysts of public policy from debating
questions. of war and peace.
To prevent the harm inevitable from such
censorship, the federal government should
devise legislation that protects real secrets,
along with the right of all citizens to speak
freely: Since the president won't do so, Con-
gress should.[.
to Mr. HUDDLESTON. Mr. President,
the amendment offered by Senator
MATStws and Senator EAGLETON to sus-
pend until April 15, 1984, the prepubli-
cation review requirements of the
recent Presidential directive on nation-
al security information is an impor-
tant action to prevent establishment
of an unjustified system of censorship
in this country.
As a member of the Select Commit-
tee on Intelligence, I have worked for
several years to improve the practices
and- procedures for protecting the se-
curity of sensitive national-security in-
formation, consistent with the public's
right to know as much as possible
about their Government. Congress has
a duty to insure that effective security
and counterintelligence measures are
taken to protect vital secrets. At the
same time, we must safeguard against
the overzealous pursuit of secrecy for
its own sake, as a means of silencing
dissent or covering up mistakes.
In the CIA and other components of
the Intelligence community, Federal
employees are expected to assume the,
special obligation of submitting for
classification review any writings on
intelligence matters they may seek to
publish after leaving the Government.
This is necessary because of the excep-
tional nature of intelligence work, in-
cluding the day-to-day exposure to de-
tails of intelligence sources and meth-
ods.
The Presidential directive last
March, however, would extend this
prepublication review system through-
out the executive branch to officials
whose access to classified intelligence
reports is much more limited. These
Government employees are primarily
responsible for the development and
implementation of military, economic,
law enforcement, foreign policy, and
other decisions. When they leave Gov-
ernment we expect them to write and
speak out on the policy issues that
confront our Nation. Sharing their ex-
perience and viewpoints with the
American people is absolutely essen-
tial for the public to make informed
judgments.
Extending. to these officials the
system developed for the CIA and
other intelhgence agencies poses,
therefore, a grave threat to the proc-
ess of free and open debate in our
democratic society.- Prepublication
censorship inevitably chills the free-
dom of, expression. Any censorship
system involves subjective judgments,
and in this case the judgments of one
administration will govern the writ-
ings of the officials of previous admin-
istrations.
Before the Presidential directive is
implemented, the Congress must have
an opportunity to assess fully the al-
leged benefits and the anticipated
risks of wider censorship of the writ-
ings of former officials. Thus, I am
pleased that Senators MATHIAS and
EAGLETON. along with others, have pro-
posed legislative action to suspend the
prepublication review provisions of the
Presidential directive to allow -further
consideration of this issue by the Con-
gress.-
Mr. LEVIN. Mr. President, I would
like to take this opportunity to ex-
press my support for the amendment
of Senators MATHIAs and EAGLETON to
S. 1342. This amendment would delay
for 6 months the implementation of
any new Federal employee. security
measures as provided by Presidential
National Security Directive 84.
On March 11. 1983, the President
issued a national security directive
calling for the implementation of cer-
tain security measures, which accord-
ing to the administration are designed
to "strengthen our efforts to safe-
guard national security information
from unlawful disclosure." One of the
measures called for by the directive is
the use of a prepublication review
agreement. Under the directive's plan,
tens of thousands of Federal employ-
ees will be required to submit for pre-
publication censorship, a wide range of
their works, including works of fiction,
that they intend to disclose to the
public.
The agreement itself is very broad
and vague. It very loosely defines the
type of information that will be cen-
sored and sets few limits on the nature
of materials that must be submitted
for reveiw. Specifically, paragraph 5 of
the agreement states in pertinent part:
? ? ? I hereby agree to submit for security
review by the Department or Agency last
granting me either a security clearance or
an SCI access approval all-materials, includ-
ing works of fiction, that I contemplate dis-
closing to any person not authorized to have
such information or that I have prepared
for public disclosure, which contain or pur-
port to contain:
(a) any SCI, any description of activities
that produce or relate to SCI. or any infor-
mation derived from SCI;
(b) any classified information from intelli-
gence reports or estimates: or
(c) any information -concerning Intelli-
gence activities, sources or methods.
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October 20, 198 CONGRESSIONAL RECORD - SENATE
Provision 5(c) in particular, provides
the Government with enormous lati-
tude to limit the first amendment
rights of tens of thousands of individ-
uals, and censor information that is in
no way classified. This provision gives
the Government the authority to
censor wholly fictional works and thus
the ability to police the creativity of
citizens of this country. Furthermore.
the agreement is forever binding on
the individual, and he or she must
submit their work for Government
censorship long after leaving Govern-
ment office.
This unprecedented move by the ad-
ministration is unjustified. Although
this new arrangement along with the
other measures of the directive will
significantly alter the present Federal
employee security program, by the ad-
ministration's own admission. in the
past 5 years. under the present system,
there have been only one or possibly
two unlawful disclosures which were
in any way damaging to our national
security.
Never before has our Government
attempted to so severely restrict the
flow of information between Govern-
ment employees and the people they
serve. Nevertheless. the administra-
tion is seeking to hurriedly implement
this new program. However, time is
needed to investigate whether there is
a need for this type of program and
determine what the full impact of this
new censorship will be. Furthermore,
additional time will give the adminis-
tration an opportunity to correct the
defect in the directive.
Censorship of Government informa-
tion is a very serious matter that
should be dealt with in a reasonable
and cautious manner. There is no
pressing need to alter the present
nature of our Federal employee secu-
rity program at this time, but there is
a pressing need -to thoroughly investi-
gate this matter before a vast new pro-
gram of the prepublication censorship
is begun.
For this reason, I support the meas-
ure of Senators MATHIAS and EAGLE-
TON to delay implementation of Presi-
dential National Security Directive 84.
? Mr. BINGAMAN. Mr. President, as
a cosponsor of the amendment offered
by Senators EACI.sroN and MATHIAS, I
urge my colleagues to support its
adoption- The amendment will delay
the implementation of one particular
section of the National Security Deci-
sion Directive (NSDD) 84 which was
issued by President Reagan in March
1983. The amendment will temporarily
prohibit until April 15, 1983, the en-
forcement, issuance, or impiementa-
tion of that portion of the Presidential
directive requiring prepublication
review of the writings of former offi-
cers and employees of the Govern-
ment. Although I am sensitive to the
need to prevent leaking of classified
information, I am concerned with the
means called for in the President's di-
rective. The entire directive and the
prepublication review section, in par-
titular, raise serious questions, in my
opinion.
National security leaks have oc-
curred in this and previous administra-
tions. It has been asserted that such
leaks have often come from high level
officials within each administration.
In this administration, the focus has
been on the adequacy of current regu-
lations. President Reagan on March
11, 1983, issued a Presidential directive
on "Safeguarding National Security
Information." The directive is intend-
ed to strengthen efforts to protect na-
tional security information from un-
lawful disclosure. The directive is
based on the recommendations of an
interdepartmental group chaired by
the Attorney General of the United
States.
As stated in existing Presidential Ex-
ecutive Order 12356? only that infor-
mation whose disclosure would harm
the national seemity int sts of the
United States may be classified. The
current regulations do not adequately
address unlawful disclosure. In order
to strengthen security efforts the
President has directed executive
branch agencies .to take additional
steps to protect against unlawful dis-
closures of classified information- The
major provisions of the new directive
would require Federal agencies which
handle classified information to adopt
internal procedures to safeguard
against unlawful disclosure of such in-
formation by: First, requiring persons
with access to classified information to
sign nondisclosure agreements, as a
condition of access, which would stipu-
late that their writings, during their
Government service and after, would
be subject to prepublication review by
the Government: second; requiring
that 'appropriate policies shall be
adopted to govern contracts between
media representatives and agency per-
sonnel"; and third, requiring employ-
ees "to submit to polygraph tests.
when appropriate", and stating that
refusal to do so would permit agencies
to- determine "appropriate adverse
consequences."
These extraordinary measures have
caused much concern in the Congress
and among the general public. Several
days of hearings have been held by
the House of Representatives and the
Senate. The inherent unreliability of
polygraph examinations has been
pointed out. The expanded reliance on
polygraph envisioned by the directive
has been questioned. Dr. John F.
Beary, the Assistant Secretary for
Health Affairs in the Pentagon, which
would be the largest user of the poly-
graph technique, has charged that the
polygraph '"misclassifies innocent
people as liars." In a memo to Defense
Secretary Caspar W. Weinberger, Dr.
Beary said that polygraph tests can be
misleading in determining whether
people are telling the truth. This and
other concerns led Senator Jackson to
offer an amendment in the Armed
Services Committee which temporarily
bars the lie-detector provision of the
S 14295
directive- This amendment was added
to the Defense Authorization Act and
prohibits the Department of Defense
from taking adverse action against
military or civilian employees based
solely on lie-detector tests or refusal to
submit to them, The bar is effective
until April 15, 1984-
On September 13, 1983, the Senate _
Governmental Affairs Committee, of
which I am a member, also held an
oversight hearing on the directive. At
this hearing we received extensive tes-
timony which reaffirmed concern over
the use of polygraphs as well as the
prepublication review provision of the
directive.
I am extremely concerned with the
direct or indirect implications of the
requirement in the directive calling for
prepublication review of the writings
of both current and former Govern-
ment employees This extraordinary
measure, in. my opinion. not only
would be time-consuming, It would be
open to possible misuse if used to sup-
press unpopular or disfavored political
ideas, and it raises serious first amend-
ment constitutional questions- This
provision applies to books and mem-
oirs, speeches, book reviews, scholarly
papers, and even fiction, including
novels and short stories. It also covers
virtually all employees in an agency
from the Secretary down to career
civil servants. I am very concerned
with the possible misuse of such pre-
publication review as a form of censor-
ship and suppression of freedom of
speech. Furthermore. I believe the re-
quirement is misdirected and will be
practically impossible to effectively
enforce.
These concerns were also expressed
by Lloyd Cutler, former counsel to
President Carter and a prominent -at-
torney. In testimony before the Gov-
ernmental Affairs Committee, Mr.
Cutler, stated that:
The directive goes much too far and, as
regulation in this area of speech should,
does not strike a reasonable and satisfactory
balance between the Government's, need for
review and a present-or former official's. es-
peciall-v a policy official's right to speak out
on matters of public interest.
These and other - sentiments were
echoed in an article which appeared in
the New York Times Magazine on Sep-
tember 25. 1983, entitled, 'The New
Effort to Control Information.- In
this article Floyd Abrams, a noted con-
stitutional. scholar makes a very strong
case against the broad prepublication
review requirement called for in the
President's directive- Mr. Abrams at-
tacks the requirement as unparalleled
peacetime censorship, 7 at odds with
the concept that widespread dissemi-
nation of information from diverse
sources furthers the public interest-
hostile to the basic tenant of 'the first
amendment". and as a whole, a blatant
act by the Reagan ariminiStratinn.
which seems `obsessed with the risk of
information, of its potential for lead-
ing the public to the 'wrong' conclu-
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S 14296
CONGRESSIONAL RECORD - SENATE October 20, 1983
sions," to permit the Government
itself to decide what information
about its conduct is 'meaningful,'"
Without objection. I ask that a copy of
this article be made a part of the
RECORD following my remarks.
Leaking sensitive information can be
dangerous and should be prevented if
at all possible. I welcome the Presi-
dent's attention and.interest. I believe
Congress also has a responsibility for
safeguarding sensitive and classified
information and it is appropriate to
review the new Presidential directive.
In the scope of such a'review certain
questions which have been raised re-
garding the directive should be fully
considered.
The new directive calls for what has
been described as extraordinary meas-
ures which could impact very seriously
on the working conditions in the Fed-
eral Government, the legitimate flow
of information from the Government
to the public, and whether Congress
has sufficient access to Government
decisionmakers to engage in meaning-
ful oversight. I also question its overall
effectiveness.
While I support taking stronger
action against those who intentionally
leak classified information to harm
the Nation, I believe we also have a re-
sponsibility .to insure that the meas-
ures intended to be taken to prevent
such disclosure do not violate constitu-
tional rights and civil liberties. Viola-
tors of existing statutes should be
prosecuted to the fullest extent.
Where necessary such statutory pro-
tections should be improved.
The expanded use of and reliance on
lie-detector tests is highly question-
able. Serious objections have long
been raised about reliability of poly-
graph exan-tinations, both in general
and in the context of national security
investigations. The use of prepublica-
tion review - by the Government of a
former employee's writing is far reach-
ing. would be extremely time consum-
ing, and could easily be misused to
stifle disfavored views.
I believe it is appropriate for Con-
gress to further review these concerns
in the context of a public hearing to
discuss the background and reasons
for the new Presidential directive, the
intended results, and the concerns
raised. While hearings have already
been held in the Governmental Affairs
Committee, I think it would be appro-
priate for additional hearings to be
held by the Armed Services Commit-
tee on the impact of the polygraph re-
quirement upon the Department of
Defense. The conference report on the
Department of Defense Authorization
Act for 1984 calls upon the Committee
on Armed Services and Committee on
Governmental Intelligence to hold
hearings prior to April 15, 1984, on the
use of polygraph examinations in the
Department of Defense. Additional
hearings should also be held by the
Governmental Affairs Committee on
-the prepublication review require-
ment.
In order to allow for further con-
gressional and public scrutiny, I urge
my colleagues to support this amend-
ment, which temporarily blocks the
implementation of the prepublication
review section of the President's direc-
tive consistent with action already
taken regarding the expanded use of
polygraph examinations.
There being no objection, the article
was ordered to be printed in the
RECORD, as follows:
[From the New York Times Magazine, Sept.
25, 19831
TsE NEw EFFORT To CONTROL INFORMATION
(By Floyd Abrams)
A month ago today, the Reagan adminis-
tration publicly released a contract that has
no precedent in our nation's history. To be
signed by all Government officials with
access to high-level classified information, it
will require these officials, for the rest of
their lives, to submit for governmental
review newspaper articles or books they
write for the general reading public.
The contract will affect thousands of
senior officials in the Departments of State
and Defense, members of the National Secu-
rity Council staff, senior White House offi-
cials and senior military and Foreign Serv-
ice officers. Its purpose is to prevent unau-
thorized disclosure of classified information,
but its effects are likely to go far beyond
that. It will give those in power a new and
powerful weapon to delay or even suppress
criticism by those most knowledgeable to
voice it. The new requirement, warns the
American Society of Newspaper Editors, is
"peacetime censorship of a scope unparal-
leled in this country since the adoption of
the Bill of Rights in 1791."
The subject-of hearings earlier this month
of a subcommittee of the Senate Govern-
mental Affairs Committee, this latest at-
tempt at information control by the Reagan
Administration is part of a far more sweep-
ing policy. It is one unique in recent histo'
ry-clear, coherent and, unlike that of some
recent Administrations. not a bit schizo-
phrenic. More important, it seems at odds
with the concept that widespread dissemina-
tion of information from diverse sources
furthers the public interest. In fact, it ap-
pears to-be hostile to the basic tenet of the
First Amendment that a democracy requires
an informed citizenry to argue and shape
policy.
In the two and a half years it has been in
power, the Reagan Administration has:
Consistently sought to limit the scope of
the Freedom of Information Act (F.O.I.A.).
Barred the entry into the country of for-
eign speakers, including Hortensia Allende,
widow of Chilean President Salvador Allen-
de, because of concern about what they
might say.
Inhibited the flow of films into and even
out of our borders: neither Canada's Acade-
my Award-winning "If You Love This
Planet" nor the acclaimed ABC documen-
tary about toxic waste, "The Killing
Ground," escaped Administration disapprov-
al.
Rewritten the classification system to
assure that more rather than less informa-
tion will be classified.
Subjected governmental officials to an un-
precedented system of lifetime censorship.
Flooded universities with a torrent of
threats relating to their right to publish
and discuss unclassified information-usual-
ly of a scientific or technological nature-on
campus.
So far, these efforts to control informa-
tion have been noticed by those most direct.
ly affected, but by few others. The Adminis-
tration's policies, says the American Civil
Liberties Union, have been "quiet, almost
stealthy, difficult to see and therefore hard
to resist." There is also the feeling among
many Americans that the actions of this Ad-
ministration are less-than-threatening since
they are fueled by the deeply felt conserv-
ative ideology of Ronald Reagan and not
from the anger or meanness of spirit that,
many feel, characterized the Nixon Presi-
dency. Furthermore, wrote The Time's col-
umnist Anthony Lewis, these actions "have
had little attention from the press, perhaps
because the press is not their principal
target." -
However little noticed its actions have
been, this is an Administration that seems
obsessed with the risks of information, fear-
ful of both its unpredictability and its po-
tential for leading the public to the "wrong"
conclusions. Its actions are rooted in a view
of the Soviet Union, in the President's
words, as an "evil empire"-a view undoubt-
edly bolstered by the destruction by the
Russians of a South Korean .commercial jet
on Sept. 1. It is a view that not only focuses
on security but,also equates security with
secrecy, and treats information as if it were
a potentially disabling contagious disease
that must be controlled, quarantined and ul-
timately cured.
The administration's distrust of the Free-
dom of Information Act was evident from
its first days in power. Passed in 1966, the
act-which has come to symbolize openness
in government-permits citizens to request
documents detailing Government activities.
It resulted in news articles revealing, among
other instances of governmental wrongdo-
ing, the My Lai massacre, the F.B.I.'s ha-
rassment of domestic political groups, and
the C.I.A.'s surveillance of American college
campuses. It also made possible such diverse
books as "Perjury: The Hiss-Chambers
Case," by Allen Weinstein; "The Fourth
Man," by Andrew Boyle (which in turn. led
to the identification of Anthony Blunt as a
one-time Soviet spy), and "Sideshow: Kissin-
ger, Nixon and the Destruction of Cambo-
dia." by William Shawcross. Mr. Shaw?cross,
a British writer, has called the act"a trib-
ute to the self-confidence of American soci-
ety."
Contending -that the F.O.I.A. had weak-
ened law-enforcement -and intelligence agen-
cies and become burdensome to implement.
the Administration made enactment of
major amendments limiting the scope of the
act a matter of high priority. One proposal,
not adopted by Congress, sought a total ex-
emption of the C.I.A. from the provisions of
the act, even though- the agency had won
every case in which it sought not to disclose
properly classified information.
Unable to obtain Congressional approval
of its major amendments, the Administra-
tion resorted to a different tactic. Under the
F.O.I.A., classified information is denied the
public unless it can be shown in court that
the material, according to the prevailing
guidelines, was improperly classified in the
first place. By changing the classification
guidelines-something the President may do
without Congressional approval-the Ad-
ministration avoided the risk that the
courts would order the release of such docu-
ments.
Early this year, the Administration took
additional steps-again. ones not requiring
Congressional approval. The Department of
Justice reversed the policy formerly in
effect of being "generous" in waiving the
payment of processing fees to public-interst
organizations seeking information under the
act. Sternly phrased legalistic criteria were
substituted. barring the waiver of fees
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October 20, 1983 CONGRESSIONAL RECORD - SENATE
unless the Government first decided that.
among other things the information re-
leased -meaningfully contributes to the
public development or understanding of the
subject-" The effect of the new guidelines
was to permit the Government itself to
decide what information about its conduct-
or misconduct-was "meaningful--
The Administration also moved into other
areas of information controL Under the
McCarran-Walter Act, adopted over Presi-
dent Harry S. Truman's veto in 1952. for-
eigners may be denied visas to visit the
United States if a consular officer or the At-
torney General "has reason to believe" the
prospective visitor seeks "to engage in activ-
ities which would be prejudicial to the
public interest" Given such sweeping statu-
tory authority, an Administration, if it
chooses to, can give its ideological dictates
free rein.
Invoking this act, the Reagan Administra-
tion barred a wide range of foreign speakers.
Mrs. Allende was denied entrance to the
country to speak- So were the Rev. Ian Pais-
ley and Owen Carron, spokesmen for, re-
spectively, the radical Protestant and
Roman Catholic groups to Northern Ire-
land. Julio Garcia Espinosa, Deputy Cultur-
al Minister of Cuba, was barred from at-
tending a film festival in Los Angeles be-
cause his attendance. according to a State
Department spokesman, -could be prejudi-
cial to U.S. public interests"
Last year. the Justice and State Depart-
ment prevented groups of foreigners from
attending a United Nations disarmament
session. When protests were made to Ken-
neth I. Adelman, then deputy United Na-
tions delegate, about the denial of visas to
hundreds of Japanese who wished to attend
the session, his response was'. "We have ab-
solutely no legal obligation to let Tommy
Bulgaria or anyone -else from Soviet-front
groups" enter the country.
Motion pictures have not escaped Admin-
istration scrutiny. Since its adoption in
1938, the Foreign Agents Registration Act
has required any film that is produced
under the auspices of a foreign country and
that is political propaganda to be so labeled
unless the film is-not serving predominant -
ly a foreign interest--.
In the single most expansive, and -best
known. interpretation of the statute by any
Administration, the Department of Justice
last year sought to require three films pro-
duced by the National Film Board of
Canada to be labeled as political propagan-
da. One of the films, -If You Love This
Planet" subsequently won an Academy
Award. The Department of Justice later
summarized the film's -political propagan-
da" message this way: -Unless we shake off
our indifference and work to prevent nucle-
ar war, we stand a slim chance of surviving
the 20th century.`
Why a film with such & message was con-
sidered political propaganda has yet to be
satisfactorily explained. Why it was consid-
ered to be serving 'predominantly a foreign
interest" also remains unexplained. On May
23, 1983. Judge Raul A. Ramirez of the
United States District Court for. the Eastern
District of California entered a preliminary
injunction restraining the Justice Depart-
ment. from Tequiring registration of the
three films.
"The court." concluded Judge Ramirez.
"is having great difficulty in ascertaining
how any legitimate Federal interest is es-
poused or advanced by the classificetion of
documents and/or films such as those
before the court as propaganda. It makes no
common sense whatsoever when we are
dealing in a realm where the entire purpose
is the dissemination of free ideas through-
out the citizenry of the United States, so
that citizens can bounce ideas off of each
other to ascertain the truth.-
American-made documentary films des-
tined for foreign audiences have not escaped
scrutiny either. Under an agreement adopt-
ed by a United Nations conference in 1948,
film makers pay no American export or for-
eign-import duties if the United States In-
formation Agency (U.S.I.A.) certifies that
they are primarily intended to "instruct or
inform- rather than to propagandize.
It is the US.LA. that decides on which
side of the line-'information" or "propa-
ganda---a film falls. It. in turn, relies on the
Government agency with expertise in the
area to advise it. Under this Administration,
as revealed in the July-August issue of
American Film magazine, the result has
been that the acclaimed 1979. ABC docu-
mentary about toxic waste, "The Killing
Grotmd" was denied a certificate.' he Envi-
ronmental Protection Agency (&P.A.) con-
cluded last year that the- film was "mainly
of historical interest- since the United
Slates "has made great progress in manag-
ing 'hazardous wastes" "The Killing
Ground" had won two Emmys. first prize at
the Monte Carlo Film Festival and been
nominated for an Academy Award. But to
its E.P.A. reviewers, "the tone of 'The Kill-
ing Ground' would mislead a foreign audi-
ence into believing that the American public
needed arousing to the dangers of hazard-
ous wastes twhen) this is no longer the
case."
So intently has the Administration fo-
cused on the perils of disclosure of informa-
tion that it has sometimes failed to distin-
guish between information previously made
public and that which has been kept secret.
When the unaccompanied luggage of Wil-
liam Worthy,-Jr.. an American journalist,
and his two colleagues arrived from Tehe-
ran at Boston's Logan International Airport
in December 1981, it included 11 volumes of
American Embassy documents said to have
been seized by Iranians during the takeover
of the embassy, reproduced by them and
sold freely on the streets of Teheran. The
document had been secret. By the time the
three Americans obtained a copy. they
could hardly have been so to any intelli-
-gence agency in the world.
Nevertheless, the volumes were impound-
ed by the F.B.I. and Customs officials at the
airport- A year later, after the journalists
had sued the Government, the two agencies
agreed to an out-of-court settlement of
$16,000-
Of all the policy. changes of the. Reagan
Administration from that of its pred-
ecessors, the ones that may have the most
lasting impact are the decisions to classify
more information and to subject Govern-
ment officials to lifetime prepublication
review.
This occurred in three stages, the first
taking place eight months after the Inaugu-
ration of the new President. One of Attor-
ney General William French Smith's first
major acts in 1981 was to revoke Justice De-
partment guidelines issued just a year
before concerning the United States Su-
preme Court decision in Snepp v. United
States. In 1980, the Justices had upheld, by
a 6-3 vote. a C.LA. requirement that its em-
ployees agree to lifetime prepublication
review by the agency of their writings to
insure that no classified material was re-
vealed. The Supreme Court. concluded that
someone subject to such an agreement who
failed to submit his writings, even of unclas-
sified information, breached the agreement.
Frank Snepp 3d, a former C.I.A. analyst of
North, Vietnamese political affairs, was
obliged to turn over to the Government all
of his earnings from his book "Decent Inter-
val."
S14297
The Supreme Court ruling contained
broad language that could be interpreted to
permit the same prepublication review pro-
cedure to be applied. as well, to the -tens of
thouands of non-C.I.A. employees who also
have access to classified information. The
Government had not sought that degree of
power in the Snepp case, Nor is it clear that
the Court intended that result.
Aware that in hands insensitive to First
Amendment. rights the Snepp opinion might
be overextended. Attorney General Benja-
min R. Civiletti issued a set of guidelines.
They called for the Government to consider
several alternative actions before rushing to
Court to obtain injunctions against publica-
tion of unintentional and possibly ineaning-
less disclosures of information. Among the
factors to be weighed was whether the- in-
formation already had been made widely
available to the public and whether it had
been properly classified in the first, place
in revoking the Civiletti guideiines, Attor-
nes General Smith explained that his de-
partmentsought to avoid "any confusion as
to whether the United States will evenhand-
edly and strenuously pursue any violations
of confidentiality obligations" However, no
example was offered of any harm actually
or even potentially caused by the Civiletti
guidelines.
The second step taken by the Administra-
tion related to the classification system
itself- The system had long been criticized
for its absurd overinclusiveness. Between
1945 and 1963 alone, more than 500 million
pages of documents has been classified. By
1973, 160 million pages of classified World
War II documents still had not even been
reviewed to determine if they should be
made public. President Richard M. Nixon
once observed that even the White House
menu was classified-
A 1978 Executive Order signed by Presi-
dent Jimmy Carter attempted to limit the
amount of information unnecessarily kept
from the public. Government officials were
ordered to consider the public's right to
know in classifying information and were
told to use the lowest level of clearance
when in doubt. Clarification of information
was permitted only on the basis of `idegtifi-
able" potential damage to national security.
By an Executive Order signed on April 2.
1982. President Reagan reversed each of the
critical components of the reforms adopted
four years earlier. Government officials
were no longer required even to consider the
public's right to know when they classified
information. When in doubt. Government
officials were to classify material at the
highest. not lowest, level of secrecy. The re-
quirement that potential harm to national
security be "identifiable" was abandoned.
The third step was taken on March 11,
1983. That day, a Presidential directive was
issued. requiring a wide range of additional
present and former Government officials to
obtain clearance from the Government
before publishing materal that might be
classified. The Justice Department docu-
ment detailing the directive cited the Snepp
decision as the basis for the requirement.
The new presidential order and the Aug.
25 "agreement" released by the Administra-
tion that implements it establish a category
of information described as -sensitive corn-
partmented information" (S.C.I.)-classified
information that is "subject to special
access and handling requirements.-
Richard K. Willard. Deputy Assistant At-
torney General, has defended the Presiden-
tial directive by saying that the "prepublica-
tion review program provides a reasonable
method of preventing disclosures by those
employees who have had access to the most
.sensitive kind of classified information."
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S 14298 CONGRESSIONAL RECORD - SENATE
However, according to the Justice Depart-
ment document explaining the directive,
prepublication review will be required of all
books (fiction or nonfiction), newspaper col-
umns, magazine articles, letters to the
editor, pamphlets and scholarly papers by
officials with access to S.C.I. materials. so
long as what is written describes activities
that relate to S.C.I., classified information
from intelligence reports, or "any informa-
tion"-classified or not- concerning intelli-
gence activities, sources or methods."
Under the new policy,'-there is no need to
submit for prepublication review material
consisting "solely of personal views, opin-
ions or judgments" on topics such as "pro-
posed legislation or foreign policy." But the
Catch-22 is this: If the opinion even implies
'any statement of fact" that falls within
the range of review, then the material must
be cleared by the Government 'before it is
published. Since most opinions worth. ex-
pressing about American defense or-intelli-
gence policies at least imply some pro-
scribed facts, what the new requirement
amounts to is a massive intrusion -of- the
Government into the right of former offi-
cials to speak and of the public to listen.
Responding to the initial announcement
in March, the Society of Professional Jour-
nalists, Sigma Delta Chi, called the directive
an "ill-conceived proposal" that is "as trou-
bling as it is sweeping.... Taken with pre-
vious actions by the Administration to stem
the flow of Government information to the
people, the cumulative effect is a major re-
treat from this country's commitment to
open government."
So breathtaking is the scope of the Presi-
dential directive that if it had been in effect
before this summer, many articles published
in this magazine could not have been print-
ed without prior governmental clearance.
An article last year by Gen. David C. Jones,
former chairman of the Joint Chiefs of
Staff under Presidents Carter and Reagan,
criticizing the current defense establish-
ment, would have had to be cleared by the
very establishment General Jones was de-
nouncing. This year, two articles-one by
Earl C. Ravenal, a Defense Department offi-
cial under President Johnson, urging with-
drawal of - American forces around the
world, and the other by Leslie H. Gelb. the
national-security correspondent for The
New York Times who had served in the
Johnson Administration, on arms control-
criticized policy decisions made by those
who would be reviewing them.
The effect of the directive is this: Those
people most knowledgeable about subjects
of overriding national concern will be least
able to comment without the approval of
those they wish to criticize.
Changes in law to assure that far more in-
formation will be kept from the public are
only one aspect of the Reagan Administra-
tion's new era of secrecy. Another, far less
known, has pitted the Administration
against much of the country's university
community.
From its first - days, the Administration
has been concerned that the fruits of
American technology have been flowing too
freely abroad. "Publication or certain infor-
mation," complained Adm. Bobby R. Inman,
then deputy director of the C.I.A., "could
affect the national security in a harmful
way." Deputy Secretary of Defense Frank
C. Carlucci. similarly warned that the Soviet
Union was engaged in an "orchestrated
effort" designed to gather the "technical in-
formation required to enhance its military
posture."
The problem that has been vexing the Ad-
ministration has not been one of-classified
information. To avoid governmental inter-
ference in the open exchange of views at
universities, many leading universities have
refused to engage in any_classified research.
The problem has been with material that is
not classified at all.
Only a month after President Reagan
took office, the president of Stanford Uni-
versity, Donald Kennedy. forwarded a letter
to Secretary of State Alexander M. Haig Jr.,
Secretary of Defense Casper W. Weinberger
and Secretary of Commerce Malcolm Bal-
drige. Written by Dr. Kennedy and the
presidents of California Institute of Tech-
nology, Massachusetts Institute of Technol-
ogy, Cornell University and the University
of California, the letter expressed concern
about Administration 'interpretation of two
statutes.
'The university presidents observed that
the International Traffic in Arms Regula
tions and the Export Administration Regu-
lations, which had "not until now been ap-
plied to traditional university activities,"
seemed about.-to..be interpreted so as to in-
hibit or bar the exchange of unclassified in-
formation, the-publication of such material,
as well as its use in classroom lectures when
foreign students were present.
"Restricting the free flow of information
among scientists and engineers." the univer
sity presidents urged, "would alter funda-
mentally the system that produced the sci-
entific and technological lead that the Gov-
ernment is not trying to protect and leave
us with nothing to protect in the very near
future."
The Administration's response was made
more than four months later in letters from
James L. Buckley, Under Secretary of State
for Security Assistance, Science and Tech-
nology, and Bohdan Denysyk, Deputy As-
sistant Secretary for Export Administration
of the Department of Commerce. Both tried
to assuage the concerns of the university
presidents. Neither could fully succeed in
doing so. Both letters assured the university
presidents that no "new" construction of
law was being imposed by the Administra-
tion, but the letters were so qualified that it
remained unclear just what unclassified
technical data were deemed by the Adminis-
tration to be too sensitive to be taught.
Meaningful clarification has yet to be re-
ceived.
What has been received by universities is
a series of letters forwarded from the State
and Commerce Departments suggesting
that ordinary teaching of unclassified mate.
rials may be considered an "export" within
the meaning of laws barring the exporting
of secret technology. If so, the universities
might be subject to civil or even criminal
sanctions.
In 1981, for example, in a letter similar to
that sent to universities around the nation,
the then State Department exchanges offi-
cer, Keith Powell 2d, asked the University
of Minnesota to restrict the academic activi-
ties of Qi Yulu, a Chinese exchange student,
including denying him access, in the area of
computer-software technology, "to unpub-
lished or classified Government-funded
work." Federal law-enforcement officials
also visited the university to emphasize the
need for the restrictions.
In a blistering response, the University of
Minnesota's president, C. Peter Magrath,
pointed out to Mr. Powell that since the
university refused to accept classified Gov-
ernment research, scholars from China
would not have access to any such material.
"We have all kinds of unpublished Govern-
ment-funded research all over the campus."
Dr. Magrath went on, "your proposal would
restrict him from access to all of it."
Mr. Powell has asked that the Govern-
ment be informed prior to any visits of Qi
Yulu to any industiral or research facilities.
"I can only interpret this," wrote Dr. Ma-
,Octo'ber 20, 1.983
grath, "to give us the choice of confining
him to the student union or contacting you
several times a day about his campus itiner-
ary.... Both in principle and in practice,
the restrictions proposed in your letter are
inappropriate for an American research uni-
versity'." The proposed restrictions, Dr. Ma-
grath concluded. "can only have a chilling
effect upon the academic enterprise.:..'
Some foreign scholars have not been able
to come to this country because of Adminis-
tration demands that limits be placed on
their academic work while they were here.
Cornell Univerisity, 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 of 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 schol-
ar in robotics-who had been invited to this
country by the National Academy of Sci-
ences-could not have general access to uni
verity facilities (all of which were of unclas-
sified research), the visit was canceled.
The Government's activities have not
been limited to threatening university ad-
ministrators with sanctions. A year ago. the
Defense Department prevented the publica-
tion 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 tele-
gram 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 Citsl timing. in the
large number of papers removed and-in the
scope of the papers' content." Defense De-
partment officials felt their actions reflect-
ed "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 Ad-
ministration's action was indefensible. In a
letter to Secretary of Defense Weinberger,
Victor S. Stone. president of the American
Association of University Professors, ex-
pressed "profound concern" at the Defense
Department move. "To restrain the dissemi-
nation of unclassified scientific knowledge,"
the letter said, "is to restrict academic free-
dom, which is of fundamental importance to
our entire society."
The Department of Energy (D.O.E.) earli-
er this year weighed in with its own propos-
al that continued public dissemination of
certain already published "unclassified but
sensitive information" about nuclear facili-
ties be prohibitied. 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 informa-
tion about nuclear facilities) and so unlikely
to work (once information is public it is all
but impossible to make it "secret" again)
that an extraordinary diverse array of
groups-from state officials, universities and
public-interest organizations to libraries,
Indian tribes and unions-have questioned
them, either in testimony given in Washing-
ton 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 ion-
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October 20, 1983
CONGRESSIONAL RECORD - SENATE . S 14299
izing radiation.'" Similar objections relating
to health and safety were voiced by environ-
mental 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 Labora-
tory. The very notion of "Unclassified Con-
trolled 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 gives Government officials another
very broad method to hide their own mis-
takes and keep information from the Ameri-
can people."
Undoubtedly, some information should be
kept secret. The design of weapons, the in-
tricacies of codes, confidences exchanged
with foreign leaders and other governmen-
tal information that is vital to the security
of this nation are and should remain classi-
fied. To that extent, the Reagan Adminis-
tration's concern about the disclosure of in-
formation is not in itself objectionable.
Nor is the Reagan Administration alone in
taking actions that restrict freedom of in-
formation. The McCarran-Walter Act, for
instance, was misued by other Administra-
tions to bar speakers with disagreeable
views from entering the country. In 1980,
the Carter Administration blocked the
entry into the United States of the promi-
nent 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 Mn
Po an entry visa.)
The Intelligence Identities Protection Act,
a law signed. by President Reagan banning
disclosure of the names of individuals in-
voved 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 Con-
gress in this era.'' it remains a stain on the
constitutional records of both Administra-
tions.
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 which those values have been
overcome.
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 ad-
ministrators have understandably focused
on threats to universities; labor unions have
naturally concentrated on 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 Ad-
ministration both in the courts and in Con-
gress.
- Those actions raise almost endless legisla-
tive and constitutional issues. It is clear, for
example, that the President may lawfully
change the classification system. But Con-
gress, if it chooses, may frustrate the Ad-
ministration's efforts to narrow the scope of
the Freedom of Information Act. Legisla-
tion proposed by Senator David Duren-
berger, Republican of Minnesota, and six
other Senators would do so by providing
that even properly classified information
will be unavailable to the public under
F.O.I.A. only when the disclosure of the in-
formation "could reasonably be expected to
cause identifiable harm to national secu-
rity" and when "the need to protect the in-
formation outweighs the public interest in
disclosure."
In other areas, Congress may, and prob-
ably should, amend the McCarran-Walter
Act to delete the sweepingly discretionary
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 objectionable. When President
Truman vetoed the bill in 1952, he warned
that "seldom has a bill exhibited the dis-
trust evidence here for citizens and aliens
alike." History has proved him right.
Congress may, and probably should, also
amend the Foreign Agents Registration Act
to delete the requirement of labeling for-
eign.films as "political propaganda." Repre-
sentative Robert W_ Kastenmeier, Democrat
of Wisconsin, 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 Amend-
ment 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 Govern-
ment officials not involved with the C.I.A.
Similarly, it seems most unlikely that dis-
closing unclassified material previously
made public can, consistent with First
Amendment principles, be made illegal.
When those efforts are .directed at universi-
ties that have historically received the spe-
cial First Amendment protection of aca-
demic freedom to assure the free exchange
of ideas, the chances that any prosecution
could succeed seem all the less likely.
There remains the question of motive.
Why has. this Administration gone so fax, 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 harmful leaks of information
have increased in recent years. Deputy As-
sistant Attorney General Willard, testifying
before the House Subcommittee on Civil
Rights this spring, observed that "we have
never suggested that it's a problem that has
increased greatly in severity in recent years.
It's always been a problem." The same day
that Mr. Willard testified, Steven Garfinkel,
the director of the Government's Informa-
tion Security Oversight Office (I.S.O.O.)-
which is responsible for the security of all
executive-branch agencies involved with
classified materials-acknowledged that in
the past three years only about "half a
dozen" leaks had even been reported to his
agency.
What, then, has prompted the Adminis-
tration'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 in-
formed.
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 Carter Administration.
I.S.O.O. has explained that one reason the
classification system was rewritten was be-
cause the rules previously in effect sounded
too "apologetic." Changes in language be-
tween that of the Carter Administration
("Information may not be considered for
classification unless it concerns .. .") and
that of the Reagan Administration ("Infor-
mation shall be considered for classification
if it contains ...")-were justified as the sub-
stitution of "positive" words for "negative"
ones.
Beyond this, there lies something far
deeper. The Administration is not only gen-
erally conservative; its policy is rooted in
the concern that Soviet armed might vastly
outstrips that of this country and immedi-
ately imperils us. With such a world view,
claims of national security seem invariably
to outweigh any competing interests:
In one sense, there is a kind of logic to the
Aministration's position. Assistant Attorney
General Jonathan C. Rose, defending that
position, has said that" freedom'of informa-
tion is not cost free; It is not an absolute
good.-Nor can we be sure what the costs
will be. We cannot know what Mrs. Allende
might have said had she been admitted to
the country or what Qi Yulu may have
learned on the University -of Minnesota
campus. We can hardly be sure that all un-
classified information is harmless informa-
tion. But if we are to restrict the spread of
information because we cannot guarantee
its harmless effects, we will have much re-
stricting to do in the future.
We will also pay a high price for doing so.
The "system' that produced the scientific
and technological lead that the Government
is now hoping to protect" has been a basi-
cally open one. By threatening the openness
of the process by which ideas are freely ex-
changed, the Administration threatens na-
tional security itself.
It also threatens the nature of American
society. If the Russian attack on the Korean
jet reinforces the Administration's view
about Soviet behavior, it also accentuates
the differences between the two countries.
It is in the nature of Soviet society to sup-
press information and to punish those who
reveal it. It is in the nature of our society to
reveal information and to punish 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, longer-range 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 it 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 infor-
mation, 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 policeman."?
The PRESIDING OFFICER. Is
there further debate?
Mr. MOYNIHAN. I move the
amendment, Mr. President. -
Mr. PERCY. I feel we are ready for
a vote on this amendment now. There
has been no call for a rollcall so I sug-
gest we have a voice vote.
The PRESIDING OFFICER. The
question is on agreeing to the amend-
ment.
Mr. DENTON. I ask for a rollcall
vote.
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CONGRESSIONAL RECORD - SENATE October 20, 1983
The PRESIDING OFFICER. Is
there a sufficient second? There is not
a sufficient second.
Mr. DENTON. Mr. President, I sug-
gest the absence of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll
The assistant legislative clerk pro-
ceeded to call the roll.
Mr. PERCY. Mr. President. I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. PERCY. Mr. President, I ask
unanimous consent to temporarily set
aside the Mathias amendment so we
may take up one or more Dole amend-
ments then to be immediately fol-
lowed by the Mathias amendment.
Mr. SYZAMS. Mr. President, reserv-
ing the right to object, and it is not my
intention to object, are the yeas and
nays ordered on the Mathias amend-
ment yet?
The PRESIDING OFFICER. They
are not.
Mr. SYMMS. Mr. President. I ask
for the yeas and nays.
The PRESIDING 'OFFICER. Is
there a sufficient second? There is not
a sufficient second.
Mr. BAKER. Mr. President, I sug-
gest the absence of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The assistant legislative clerk pro-
ceeded to call the roll.
Mr. PERCY. Mr. President. I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. With-
out objection, it in so ordered.
Mr. PERCY. Mr. President, I with-
draw my request that we set aside the
Mathias amendment. I do not believe
there are any further speeches to be
given on that subject and we are ready
for a voice rote on that amendment.
The PRESIDING OFFICER. The
question is on the amendment.
Mr. DENTON. Mr. President, I
object. I, in good faith, yielded with
the understanding that the amend-
ment was being set aside, which had
been articulated by the floor manag-
ers.,
Mr. SYMMS. Mr. President, I ask
for the yeas and nays on the Mathias
amendment.
The PRESIDING OFFICER, Does
the Senator from Alabama yield for
that purpose?
Mr. DENTON. Yes.
The PRESIDING OFFICER. Is
there a sufficient second? 'There is a
sufficient second. ,
The yeas and nays were ordered.
The PRESIDING OFFICER. Is
there further debate?
Mr. MOYNIHAN. Mr. President. I
suggest the absence of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The assistant legislative clerk pro-
ceeded to call the roll.
Mr. PERCY. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. PERCY. Mr. President, in order
to accommodate a number of our col-
leagues that did not know there was a
rollcall vote coming up at this time, I
ask unanimous consent to temporarily
set aside the Mathias amendment and
vote on the Mathias amendment and
take up one or more amendments to
be offered by the distinguished Sena-
tor from Kansas.
The PRESIDING OFFICER. Is
there objection? Without objection, it
is so ordered.
Mr. DOLE. Mr. President, the Sena-
tor from Kansas:has at 'least maybe
two or three amendments. I am not
certain in which order they will be of- -
fered, because it gets into this new En-
dowment for Democracy program, this
newest travel agency that we are set-
ting up where the Government pays
all the travel expenses-and gets no re-
sults from the endowment itself.
AMENDMSZ T 00. 2578
(Purpose: To deny compensation and travel
expenses to any member of the Board who
is an officer or employee of the United
States)
Mr. DOLE. Mr. President, I will first
send to the desk the amendment that
would try to limit travel. I do not
know of any objection to this amend-
ment.
The PRESIDING OFFICER. The
clerk will report.
The assistant legislative clerk read
as follows:
The Senator from Kansas (Mr. Dols) pro-
poses an amendment numbered 2379 to
amendment No. 2344.
On page 5, between lines 7 and 8, insert
the following:
(d)(1) Notwithstanding subsection (c), no
member of the Board, officer or staff
member of the Endowment, other than an
elected member of Congress, shall be enti-
tled to receive compensation or shall be al-
lowed travel expenses for travel made in
connection with the Endowriment while
such person is serving as on officer or em-
ployee of the United States.
Mr. DOLE.. r. President, I do not
know of any objection to this amend-
ment. This is not one of the major
amendments. It is just to try to make
certain that we do not have different
members of staff who are on the staff
of different commissions who can
travel on that commission, then travel
at USIA expense, and then travel on
this new endowment program. It is
just an-effort to limit the staff travel
and to make the staff member decide
who he works for.
There is probably much worthwhile
travel that staff members and elected
Members make overseas. I am not
criticizing that. I am not one who likes
to travel that much. I think a lot of
good comes from travel, and certainly
staff members are as responsible, in
most cases, as elected Members.
Elected Members have to justify
their travel around the world, whether
it is on official business or nonofficial
business, or whatever, every time they
run for reelection, because somebody
is going to raise the question that
there is a lot of travel going on that is
not necessary.
The same is not true of staff. Let us
face it, there are some staff who make
a career out of traveling around the
world as often as they can at taxpay-
ers expense. I think the record would
show that some break a record every
year. They travel to so many countries
this year and so many countries the
next year.
What I am fearful of is we are going
to have some of these professional
travelers who have just found another
way now to travel at taxpayer's ex-
penses under this new Endowment for
Democracy. That will be one more
travel agency they can go and pick up
a ticket and travel to some country
they have not been to yet. We want
them to see all the countries, but some
have been to various countries seven
or eight times with no real purpose.
It would seem to me that all this
amendment does is simply says staff
will not be reimbursed for their en-
dowment travel by the endowment if
they are otherwise employed by the
Government.. As I have indicated.
elected Members are not included in
this amendment because I hope that
whatever travel we make from time to
time-and some Members are required
to do more than others, certainly
members of the Senate Foreign Rela-
tions Committee have greater respon-
sibilities worldwide than other Mem-
bers, but that travel and the expense
involved have to be justified from time
to time at election time.
. I hope that this amendment might
be adopted. It might have some intact
on those who might seek to use this
new agency, if in fact it is created-it
will be of highly doubtful value if it
is-but if it is created, that at least we
are going to have just another ticket
window for somebody who wants to
start seeing the world at taxpayers' ex-
pense.
The PRESIDING OFFICER. With-
out objection, the amendment will be
in order.
Is there further debate?
Mr. MATHIAS addressed the Chair.
The PRESIDING OFFICER.. The
Senator from Maryland.
Mr. MATHIAS. Mr. President, the
Senator from Kansas has made a com-
pelling argument, as he always does.
The managers of the bill would like to
take a look at the amendment before
we respond.
Let me ask the Senator from Kansas
this question: If all travel is prohibit-
ed, would that not impinge upon the
purposes. for which the endowment
has been created?
Mr. DOLE. The purpose of the
amendment is if they are traveling
with the endowment, they cannot be
paid by another agency. I do not think
it is unduly restrictive. It deals with
making sure that someone either
works for or travels for the endow-
ment or some other taxpayer financed
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October 20, 1983 CONGRESSIONAL RECORD -SENATE
entity-but not two or three such
groups.
Mr. MATHIAS. In other words, what
the Senator is getting at is people who
are representing the endowment but
also hold some other public office.
Someone who holds public office is
not affected by the amendment.
Mr. DOLE. What I am getting at is
there are some, and I am aware of
some, who may belong to some com-
mission, or some other agency, or
some group who travel a great deal in
that group, and now we are going to
have this new source of travel, and if
they cannot make it there, they will
make it here, or maybe they will go on
both. I am just trying to tighten it up.
If they are receiving compensation
as an officer or employee of the,
United States, they cannot be reim-
bursed for their travel expenses in
connection with the endowment.
Mr. MATHIAS. I think if it is clear
that we are not prohibiting these
people from carrying out their duties
with the endowment but merely pre-
venting a kind of sequential double
compensation, that would make some
sense. I take it that this amendment
would prohibit drawing travel ex-
penses from one agency for one trip
and travel expenses from another
agency for another trip.
I will defer to the ranking minority
member of the Foreign Relations
Committee.
Mr. PELL addressed the Chair.
The PRESIDING OFFICER. The
Senator from Rhode Island.
Mr. PELL. I would like to ask a ques-
tion of the Senator from Kansas.
What is' the basic purpose of the
amendment? The Senator says any-
body traveling ;as a staff member of
the endowmert?shall not be allowed to
receive compensation from any other
agency of the Government. What is
the purpose?
Mr. DOLE. The purpose of the
amendment, and I am reading it to. see
if it may be clarified, that I want to
impose is that some staff of some
other commission or some other
agency who might be traveling in con-
nection with the endowment is prohib-
ited from receiving salary or travel ex-
penses from the endowment.
There are some. and I do not want to
get into too many specifics. who make
a career out of traveling for various
unrelated commissions, and they have
just an open-ended ticket to travel the
world at the taxpayers' expense.
Mr. PELL- in other words, the point
is that somebody working for Uncle
Sam should, be able to travel for the
branch of Government for which he
works but not be paid by another
branch.
Mr. DOLE. That is correct.
Mr. PELL. What would happen, for
the sake of argument, with a member
of the endowment who is also a staff
officer and also a Reserve officer? I
can remember as a Reserve officer a
few years back I traveled to Austria
and back at Government expense.
Does that mean I could not be an em-
ployee of the United States or a staff
member of the endowment? I do not
think the Senator means that.
Mr. MATHIAS. I do not think the
amendment does that.
Mr. DOLE. No the amendment
would not do that.
I do not want somebody to be made
an officer of the endowment so he can
get a ticket. Let us face it, there are a
lot of staffers around and, I assume,
some Members of Congress who can go
anywhere in the world. They know all
the angles. They know all the loop-
holes. If you make them an officer-or
member of the board of the endow-
ment, they have an open-ended travel
agency at their disposal.
Mr. MATHIAS. Bags packed, will
travel.
Mr. DOLE. For this commission they
have one bag, for this commission
they have another bag, and for an-
other commission they have another
bag. Sometimes they come to Wash-
ington to get their laundry done and
pick up their mail.
Mr. PELL. A staff employee of the
Senate could not receive reimburse-
ment for expenses from the endow
ment?
Mr. DOLE. That is correct. There
are plenty of places they can get tick-
ets around here for travel, though we
have tried to tighten it up, I must say.
I do not want to prevent the normal
functions of whatever we are creating,
this new endowment.
Mr. MATHIAS. Let me advise the
Senator from Kansas that there has
recently been ? adopted a substitute
amendment for title IV which makes
some substantial changes in the ar-
rangements of the endowment. For in-
stance, officers of the endowment may
not receive any salary or other com-
pensation from any source other than
the endowment during the period of
their employment by the endowment.
Further, the revised statute provides
that the endowment shall be a private,
nonprofit corporation known as the
National Endowment for Democracy,
which is not an agency or establish-
ment of the U.S. Government. As I
said, the officers cannot receive any
salary from any other source than the
endowment. So by that logic, they
could not be employees or officers of
any other agency.
Mr. DOLE. Then does that take care
of the problem we raise?
Mr. MATHIAS. I think it does take
care of the problem because it pre-
cludes any Government official from
being on the payroll of the agency.
Mr. DOLE. Does it prohibit any staff
member from traveling courtesy of the
American taxpayers through the en-
dowment?
Mr. MATHIAS. It says:
Nothing in this title shall be construed to
make the endowment an agency or estab-
lishment of the United States Government
or to make the members of the board of di-
rectors of the endowment or the officers or
employees of the endowment officers or em-
ployees of the United States.
S 14301
I would think that it would make it
very difficult for the endowment to
provide travel expenses for employees
of agencies of the Government.
Mr. PELL. There are two specific
categories I would like to ask the Sen-
ator from Kansas about. One, personal
staff members cannot tavel abroad
unless they are on Senate business.
Mr. DOLE. That is correct.
Mr. PELL. In other words, if a per-
sonal staff member wanted to go on
endowment business, the endowment
could pay for his travel under this
amendment as presently written?
Mr. DOLE. I do not think the En-
dowment could pay for it. I do not see
why they should. Maybe some of us
are worried that this Endowment we
are creating is a travel agency. I heard
the President's response last night of
all the good it is going to do around
the world, and I hope that is true.
But we also have some concerns
about it. I think one way to make cer-
tain it is going to be for,the purpose
everybody hopes it is going to pursue
would be to make it rather difficult
for'people just to fly around the world
at taxpayers' expense.
Mr. PELL. To be specific, Mr. Presi-
dent, the Senator, who is not a
member of the Foreign Relations
Committee, might have a personal
staff member who followed him and
might want him to go down and see
whether they were doing a good job or
a bad job of Endowment business.
Under this amendment, the Senate
could not pay for his travel, nor could
the Endowment. So how could he be
sent?
Mr. DOLE. Mr. President. why could
not the Senate pay for his travel?
Mr. PELL. Under the rules, as I un-
derstand it, and please correct me if I
am wrong, personal staff members
cannot travel outside the United
States unless they are accompanying a
Senator. Am I wrong about that?
Under our rules?
Mr. DOLE. It is a question of juris-
diction and of who pays for the travel.
There might be a need for an excep-
tion.
Mr. PELL. I think that should be
covered.
Mr. DOLE. I think we all have the
same intent. The Finance Committee
deals with foreign trade. We do some-
not nearly so much; we do not have
the requirements the members of the
Foreign Relations Committee have.
What I want to suggest is that there is
plenty of taxpayer financed legitimate
travel.
I think one public criticism of this
new Endowment for Democracy is
that we are creating-at least it is pic-
tured that way-some way for some-
body to get a free ticket to India,
Africa, England, wherever one wants
to go, and the taxpayers pick up the
tab. We ought to make certain we
have this fairly tight. .
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S 14302
CONGRESSIONAL RECORD - SENATE October 20, 1983
Mr. FELL. Mr. President, I wonder if
the Senator from Kansas might accept
another suggestion.
Mr. DOLE. Certainly. Mr. President.
Mr. PELL. That is to take his
amendment and add a phrase, say at
the end of it, a phrase saying, unless
so authorized by the President pro
tempore of the Senate or the Speaker
of the House. Or by both.
Mr. DOLE. That might improve it,
but again. I cannot speak for the
House. It is not too difficult to get
travel approved.
Mr. PELL. I think that would pro-
vide for the insurance I am talking
about and make it absolutely accept-
able to me. That would be assuming
an officer or employee of the United
States unless he is so authorized by
the President pro tempore of the
Senate or the Speaker of the House.
Mr. DOLE Let me suggest the ab-
sence of a quorum and see if we can
work out any difference eve have with-
out gutting the amendment.
Not too many people get to travel
around the world and when they do.
they have to pay for it themselves.
They do not particularly like to pay
for our travel, and we are elected.
Members of the Senator's committee
have an obligation to travel and they
are criticized for it from time to time.
So are the rest of us. We ought to
make certain that we are not just cre-
ating another big travel bureau here,
for a ticket to anywhere. I am certain
that is what might happen.
Let me suggest the absence of a
quorum.
The PRESIDING OFFICER. The
clerk will cal, the roll.
The assistant legislative clerk pro-
ceeded to call the roll.
Mr. MATAIAS. Mr. President. I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr.
Goaron). Without objection, it is so
ordered-
Mr. MATHIAS. Mr. President, the
managers of the bill have looked at
the amendment of the Senator from
Kansas and we think that it has some
merit.
I think it will, in all fairness, be the
subject of controversy in the confer-
ence with the House, but that is some-
thing that - we ? cannot control. * The
Senator from Kansas is an experi-
enced legislator, and he knows what
the difficulties are when there is a
contest in a committee of conference.
But subject to that reservation, I
think the managers of the bill are.pre-
pared to have a vote at this time.
The PRESIDING OFFICER. Is
there further debate? If not, the ques-
tion is on agreeing to the amendment.
The amendment (No. 2379) was
agreed to.
Mr. PELL. Mr. President, I would
like the record to show that I voted in
the negative.
The PRESIDING OFFICER. The
record will so indicate. Is there a
motion to reconsider?
Mr. -MATHIAS. Mr. President. I
move to reconsider the vote by which
the amendment was agreed to.
Mr. LEAHY. I move to lay that
motion on the table.
The motion to lay on the table was
agreed to.
The PRESIDING OFFICER. There
was a unanimous-consent agreement
pursuant to which the Mathias
amendment was laid aside ?to take up
several amendments sponsored by the
Senator from Kansas.
Are there additional amendments by
the Senator from Kansas?
AMENDMENT NO. 2380
(Purpose: To provide further - for designa-
tion- of the Chairman of the Commission
.on Security and Cooperation in Europe)
Mr. DOLE. Mr. President, I send an-
other amendment, to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The
amendment will be stated.
The. legislative clerk read as follows:
The Senator rrom Kansas (Mr. DOLE) pro-
poses an amendment numbered 2380.
Mr. DOLE. Mr. President, I ask
unanimous consent that further read-
ing of the amendment be dispensed
with.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
The amendment is as follows:
At the bottom of page 48, add the follow-
ing:
TITLE L'II-GENERAL PROVISIONS
DESIGNATION OF CHAIRMAN Or THE COMMIS-
SION ON SECURITY AND COOPERATION IN
EUROPE
Ssc. 701. Section 3 of the Act entitled "An
Act to establish a Commission on Security
and Cooperation in Europe". approved June
3.1976 (90 StaL 661). is amended-
(-1) by inserting "(a)" after "Sec. 3.":
(2) by striking out the second sentence of
paragraph (1); and
(3) by adding at the end thereof the fol-
lowing:
"(b) Beginning with the start of the first
calendar year after the date of enactment of
the Department of State Authorization Act,
Fiscal Years 1984 and 1985, the Speaker of
the House of Representatives shall desig-
nate one of the members of the Commission
on Security and Cooperation in Europe ap-
pointed from the House of Representatives
to serve as chairman during each odd-
number calendar year and the President of
the Senate, on the recommendation of the
Majority Leader, shall designate-one of the
members of the Commission appointed from
the Senate to serve as chairman during each
even-numbered calendar years.
Mr. DOLE. Mr. President, I think
some Senators are aware of what this
amendment.does. All we are seeking to
do in this amendment is return the so-
called Helsinki Commission, the
CSCE, to the nonpartisan committee
it was intended to be. There always
has been great bipartisan interest in
the Helsinki Accords, and it is clear to
me that the original Helsinki Commis-
sioners had in mind a chairmanship
arrangement that would reflect that
bipartisanship. But this arrangement
never came into being, and what we
have today is a permanent chairman
appointed by the Speaker of the
House. Even though Senators serve on
that committee-Republican Senators,
Democratic Senators. Republican
House Members, Democratic House
Members-the chairmanship never ro-
tates. It is one of these unusual things
that happened in the Congress for rea-
sons unknown to this Senator.
This amendment simply provides
that the chairmanship rotate at the
start of each calendar year between a
Member appointed by the Speaker of
the House and a Member appointed by
the majority leader in the Senate.
Whether it is a Democratic majority
or a Republican majority, it gets it
back into the spirit of rotation. I think
a little background is in order.
At a hearing on July 27, 1976, deal-
ing with the original establishment of
the Commission, the ]ate Senator Case
of New Jersey, Congresswoman Fen-
wick, and Representative FaSCELL, all
whom were instrumental in the cre-
ation of the Commission, discussed
their understanding as to how the
chairmanship would be handled, and
the following exchange occurred.
Representative FAscEtu,. One of the things
that came up immediately was maybe an
oversight. but probably not I think it was
probably a psychological kind of an effort
on the question of rotation cf chairman-
ships. The legislation provides for a House
Member to be chairman.
When that question was raised I said I
have absolutely no objection to a Senator. I
love Senators, and some of my best friends
are Senators
Senator Case is here. We have just really
started. Senator, at this point.
I assume that means that Senator
Case had just walked into the room.
Senator CASE. I made the mistake of stop-
ping in the office on the way over here.
Chairman FAscnL. I discussed th prob-
lem with Senator PELL. and some of -you in-
formally, and certainly we ought to have ro-
tating chairmanships on this matter be-
tween the House and the Senate. I think
that for the moment that certainly Senator
PELL ought to be designated as cochairman,
and that is what the legislation calls for.
with Senator PELL as cochairman, and we
can rotate it the next time around, and the
Senator will be the chairman, and the
House Member will be a cochairman.
We could get around. Senator, if this
agreeable to the group. to making the neces-
sary changes in the legislation at an appro-
priate time.
My own feeling is we ought not to rush it.
Well, I must say we have not rushed
into it. It has been almost. 8 years now.
He said:
We hgve an understanding, and if the
Commission agrees we can proceed that way
and designate Senator PELL as cochairman
from this moment on.
Senator Clark is now here.
We will find an appropriate vehicle and
we will make the necessary change in the
law.
Does that seem agreeable with members
of the Commission?
Representative FENwIca. It is perfect.
Chairman FAsesu.. We will proceed on
that basis, and the record win reflect as of
this moment that Senator PELL is the co-
chairman.
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October 20, 1983 CONGRESSIONAL RECORD SENATE ? -S14303
Nov, I have not practiced law for a one of its kind among the 31 biparti- gressman FAscEL1 is doing an excellent
long time, and did not practice much san commissions created, and even job as Chairman and he certainly is
when I did. but it seems that we have though there was an agreement on dedicated to the Commission and its.
a fairly clear-cut case here. You have July 27. 1976, that the chairmen would work. Over the years I have noted that
an admission by the man who has rotate, attendance by Commission members
been the chairman since 1976 that we I understand that Representative from the Senate, myself included, has
ought to rotate it And there was an FAscEU. has done a good job. He is an often been poor. Whether this was due
a_greernent. We have his quote saying outstanding Member of Congress, he is to a lack of time or of interest, I am
this is a deal, this is perfect. a friend of mine. not sure. But from the viewpoint of
But years have passed and the However, like so many commissions the national interest and of the Com-
chairmanship has not been rotated. where you do not have a day-to-day mission, it seemed best to leave the
In fact. Chairman FASCELL has quite contact. sometimes the staff runs the Chairmanship in the House.
a tight rein on the Commission. After Commission. Sometimes they run-the My colleagues know that I do not
he fired the deputy staff director, Senate. You have to keep an eye on like to engage in partisan battles or
whom I selected. he directed his staff what is going on. That is what is hap- squabbles about turf. I have felt, and I
to inform me that 1, the cochairman pening with this Commission. continue to feel, that Congressman
of the Commission, would not be al- It seems to me that it is a matter of F^scELL has run the Commission well.
lowed to submit another staff recom- comity between the House and the He has acquired a good deal of expert
mendation. Senate. knowledge in the last 7 years. He is an
Now, I do not think it is a personal Who knows what will happen next enthusiastic and effective Chairman
conflict between me and Congressman year? I know what will happen next and I believe that he should continue
FASCELL. I think it is a staff problem. year. but nobody knows what will to serve in that position
They do crop up around here from happen in 1985, 1986, or 1987. So this Also, frequent rotation of the Chair-
time to time. is not an effort for some IRepublican to manship creates the possibility of the
The Senator from Kansas feels that become a chairman. staff running the Commission rather
the staffing incident alone may under- I suggest that this is a matter of than the Chairman_
score the way in which the Chairman some importance. It may not be impor- Finally, in view -of the tremendous
of the Commission and staff have tant to anyone who is not on the Com- amout of work all of us have as Sena-
viewed the various cochairmen. No mission. It may not be of great impor- tors, I question if any of us has the
Commission of this type should have tance to anyone who is on the Com- time to devote to the Chairmanship of
anybody's permanent stamp on it, and mission, and maybe the entire CSCE the Commission.
this amendment would simply correct should be abolished. For all these reasons. I believe the
the situation. It seems to me that if we cannot present arrangement should be left as
Over the years, Congress has created agree-and I would think every Sena- it is. When the time comes that Con-
some 31 bipartisan Commissions of tor would agree-that if we cannot g essman When the t. loses his vigor or his
this type, ranging from the Board of rotate the chairmanship on the CSCE, interest, than we can and should re-
Directors of Gallaudet College, to the then. as an alternative, perhaps we consider this issue
Migratory Bird Conservation Commis- ought. to make the chairman of the is ssu Mr. President, tbegs
sion to the U.S. Holocaust Memorial National Endowment for Democracy a Mr. the DOh question- would that
more
Council. Of all these Commissions, Member of the Senate, selected by the - were rotation, m ie
only the Commission on Security and majority leader, whether it be a Demo- than input if
thought there they had siif
Cooperation in Europe-the Helsinki crat or a Republican. We cannot have Senators Commission- some o have a
Commission-has a Member of the it both ways. You cannot argue that Se lot to on do, the but Co thought do ntake our avei a
House of Representatives as its perma- you cannot rotate the chairmanship of lightly. The Senator not
ot from Rhode
nent Chairman. A rotating chairman the CSCE and then argue that you Island does not, the Senator from
would not only be what the original. can rotate the chairmanship of the Kansas does not.
commissioners had in mind, it would National Endowment for Democracy. do nssume that we are busier
also eliminate what my research re- I hope we can accept this amend- I
Representative * t Just be-
in to be a clearly unique situation went. In my view, we might be able to t a seume ti t that we
and
in the history of bipartisan Commis- work it out, cause ase not
cause he likes says to be does a good Chairman job,
lions created by Congress. I have no quarrel with Represents- then why should that not apply to all
The work the Helsinki Commission tive FAscEU.. I do not believe he has or
Senato
staff concerns matters of great impor- any quarrel with me. But I think we the chairmen? Is make the
new willing the
tance to our Government and to the would have a lot more Senate partici- from e other Chairman Rhode of Island
travel maake tmany American citizens who them- pation on the so-called Helsinki Com- National Endowment for Demos,
selves monitor the Easy. bloc's degree mission if we had rotating chairman- the
Natinal En appointed by the oc-
ma-
of compliance with the accords. Issues ships and.if we had more input at the the he jority leader, permanent. arppointedtbon with
of travel, family reunification, and staff level. the President? Why should we rotate
suppression of human rights are cen- So I hope we can accept this amend- one?
tral of the Commissions casework- ment. that at PEI If you find a good chair
They are in a fundamental sense Mr. PELL. Mr. President, as the Sen- Mr.
beyond politics. And that is the way ator from Kansas knows, I have great man, there would not be any reason
that the Commission itself should be regard and admiration for him and his for changing. We are about to adopt
structured. ability to shed light on debate and dis- an amendment which I do not support,
I must say-and I say it with all re- cussions. saying that we should rotate the
specs to my distinguished colleague I understand completely the point Chairmanship of the Helsinki Com-
from Rhode Island, who has done he is making. But I would be remiss if mission. I would certainly go along
great work on the Commission, who is I did not express that 1 have a person- with the Senator's suggestion that we
a loyal member of the Commission- al interest in this issue since I was the . not rotate the Chairmanship of the
that I have no quarrel with anybody first Cochairman of the Commission Endowment.
in the Senate- But I believe that-this is and an initial member. The Senator Mr. DOLE. It seems to me that we
a matter the Senate should address. It from Kansas is correct: The under- have created 31 commissions and only
is not a partisan matter. It is a matter standing was that we would rotate the one has -a permanent House Chair-
of whether or not we are going to next time around, but no decision was man. It is time to correct that.
create a commission, whether we are made as to exactly when this would I do not want the record to reflect
going to let somebody in the House be happen. for one moment that I am critical of
the permanent chairman of the Com- Frankly, the Commission is func- Representative FASCELL. But we are all
mission, even though it be the only tioning very well. I think that Con- Senators here, and I think we are
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S 14304 CONGRESSIONAL RECORD - SENATE
equal with House Members; and
sooner or later, somebody is going to
recognize that maybe that was not a
very good idea, after all.
It is not a question of one Senator
versus one House Member. It is a ques-
tion of whether this body is going to
be equal with the House when it
comes to the so-called Helsinki Com-
mission, or whether we are going to
say, "Well, if that's the attitude of the
Senate, then maybe we should abolish
the Commission." I think that prob-
ably would meet with the approval of
some.
I hope this amendment will be
adopted, to indicate that we are on the
same plane as Members of the House
and that we have a right, when we
have membership on a commission, to
have influence on that commission,
particularly when the agreement was
made that that is what would happen,
and the agreement was made back in
July of 1976.
Mr. BAKER. Mr. President, will the
Senator yield?
Mr. DOLE. I yield.
Mr. BAKER. Mr. President, I wish
to commend the Senator from Kansas
for his initiative in this respect. I will
not prolong the debate except to say
that I am glad he offered the amend-
ment and I intend to support it.
Mr. PELL. Mr. President, do I under-
stand the proposal of the Senator
from Kansas to be that if we agree to
make the Chairman of the National
Endowment a Senator then he would
withdraw his amendment? Is that his
proposed package?
Mr. DOLE. That would be a backup.
I really do not think it is a good idea
though.
Mr. PELL.I would support that
package if it is offered.
Mr. DOLE. I think the best thing is
to make the Helsinki Commission like
the 31 other Commissions. That is the
real thrust. But it would seem to me if
everything else fails then I might
offer the other amendment. But it
makes no sense. I do not want to delay
this argument because it is maybe not
that important to a lot of Members,
but it is a principle that someday the
Democrats may be in the majority
again and someone on that side may
say why have we permitted this to
happen.
It is one thing when we have a
House Democrat and a Senate Repub-
lican rotating but quite another thing
if there is some Democratic Senator
who is not becoming chairman and he
might do a great job.
So it is a principle involved. I do not
really believe that we should have any
commission where we have House
Members and Senators supposed to be
equal serving on that Commission
where the Chairmanship is locked up
by a Senator or by a House Member.
That is all I am suggesting. If so, we
should go back and change the other
31.
We already made one mistake. We
should not make another. I think we
should correct the first mistake.
Mr. ZORINSKY. Mr. President, the
Commission on Security and Coopera-
tion in Europe has functioned under
the leadership of Congressman DANTE
FASCELL since its creation by Congress
in 1976. Over the years, Congressman
FASCELL has devoted an incalculable
amount of time and energy to the ac-
tivities of the Commission. He has
proven to be an effective Chairman
and a true champion of the cause of
human rights for the peoples of the
Soviet Union and Eastern Europe.
While I appreciate Senator DOLE's
desire to rotate the Chairmanship of
the Commission, I seriously doubt
whether any Member of the Senate
has the time to fill that position effec-
tively. At present, I see no apparent
need to change the existing arrange-
ment which- is working so well.
Mr. PELL. Mr. President, I do not
wish to prolong the debate either. I
suggest we have a voice vote.
Mr. MATHIAS. I think we are pre-
pared to vote on this.
The PRESIDING OFFICER. If
there be no- further debate, the ques-
tion is on agreeing to the amendment
of the Senator from Kansas.
(Putting the question.)
Mr. PELL. Mr. President, I wish the
RECORD to show I voted in the nega-
tive.
The amendment (No. 2380) was
agreed to.
Mr. MATHIAS. Mr. President. I
move to reconsider the vote by which
the amendment was agreed to.
Mr. DOLE. Mr. President, I move to
lay that motion on the table.
The motion to lay on the table was
-.agreed-to. -
The PRESIDING OFFICER. Under
the previous order the Senator from
Kansas is entitled to introduce further
amendments he may have.
Mr. DOLE. Mr. President, I with-
draw any further amendments.
VOTE ON AMENDMENT NO. 2378
The PRESIDING OFFICER. The
question is on agreeing to the amend-
ment of the Senator from Maryland.
On this question, the yeas and nays
have been ordered, and the clerk will
call the roll.
The legislative clerk called the roll.
Mr. BAKER. I announce that the
Senator from Minnesota (Mr. DuREN-
BERGER), the Senator from Washington
(Mr. EVANS), the Senator from Arizona
(Mr. GOLDWATER), the Senator from
Florida (Mrs. HAwxINs.), the Senator
from Alaska (Mr. MuRxowsxl), and
the Senator from Alaska (Mr. Sra-
vENs) are necessarily absent.
Mr. BYRD. T announce that the
Senator from California (Mr. CRAN-
STON), the Senator from Connecticut
(Mr. DODD), the Senator from Louisi-
ana (Mr. JOHNSTON), and the Senator
from Louisiana (Mr. LONG) are -neces-
sarily absent.
October 20, 1989
The PRESIDING OFFICER. Are
there any Senators in the Chamber
desiring to vote?
The result was announced-yeas 58,
nays 34, as follows:
[Rollcall Vote No. 306 Leg.) -
? YEAS-56
Andrews
Eagleton
Mitchell
Baucus
Ford -
Moynihan
Bentsen
Glenn
Nunn
Biden
Gorton
Packwood
Bingaman
Hart
Pell
Boren
Hatfield
Percy
Boschwitz
Heinz
Proxmire
Bradley
Huddleston
Pryor
Bumpers
Inouye
Quayle
Burdick
Kassebaum
Randolph
Byrd
Kennedy
Riegle
Chalet
Lauterberg
Rudman
Chiles
Leahy
Sarbanes-
Cochran
Levin
Sasser
Cohen
Lugar
Specter
Danforth
Mathias
Stafford
DeConcini
Matsunaga
Tsongas
Dixon
Meicher
Weicker
Domenici
Metzenbaum
-NAYS-34
Abdnor -
Heflin
Simpson
Armstrong
Helms
Stennis
Baker
Hollings
Symms
D'Amato
Humphrey
Thurmond
Denton
Jepsen
Tower
Dole
Kasten
Trible
East
Laxalt
Wallop
Exon
Mattingly
Warner
Garn
McClure
Wilson
Grassley,
Nickles
Zorinsky
Hatch
Pressler
Hecht
Roth
NOT VOTING-10
Cranston
Goldwater
Murkowaki
Dodd
Hawkins
Stevens
Durenberger
Johnston
Evans
Long
So the Mathias-Eagleton amend-
ment (No. 2378) was agreed to.
Mr MATHIAS. Mr. President, I
move to reconsider the vote by which
the amendment was agreed to.
Mr. BYRD. I move to lay that
motion on the table.
The motion to lay on the table was
agreed to.
Mr. BYRD addressed the Chair.
The PRESIDING OFFICER. The
Senate will be in order. The Senate
will be in order.
Mr. BYRD. Mr. President, I ask for
order in the Senate. I am going to in-
quire of the majority leader as to what
the program is for the rest of the day
and the rest of the week. I congratu-
late the Chair in seeking to get order.
Mr. President, the Senate is not yet
in order.
Senators are wondering what will be
happening the rest of the day and how
many more rolicall votes there will be
and whether we can go home and
whether we ought to invite our wives
out for dinner and what votes there
will be tomorrow, so I hope that we
can get order so that we can hear.
Mr. BAKER. Mr. President. -the mi-
nority leader has the floor. If he will
yield to me, I would reinforce his re-
quest. I hope we could have the atten-
tion of Senators for a moment while
we try to arrange the schedule of the
Senate. -
Mr. BYRD. Mr. President, we will
have order before I proceed. We
always do. One way to get order is
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