SENATE AMENDMENT PROHIBITING THE IMPLEMENTATION OF PREPUBLICATION REVIEW REQUIREMENTS CONTAINED IN NSDD 84 UNTIL 15 APRIL 1984

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000300360017-4
• Release Decision: RIPPUB
• Original Classification: S
• Document Page Count: 29
• Document Creation Date: December 21, 2016
• Document Release Date: October 29, 2008
• Sequence Number: 17
• Publication Date: October 24, 1983
• Content Type: MEMO

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Y
OLL 83-2447
24 October 1983
MEMORANDUM FOR: Director of Security
C/SECOM
Chief, Administrative Law Division, OGC
Chief, Legislation Division, OLL
STAT
SUBJECT: Senate Amendment Prohibiting the
Implementation of Prepublication Review
Requirements Contained In NSDD 84 Until
15 April 1984
1. Attached for your review is that portion of the
Congressional Record which sets forth the Senate floor
consideration of Senator Mathias' amendment to the 1984 State
Department Authorization Act, which amendment would freeze the
implementation by agencies of any prepublication review rule,
regulation, or directive not in effect as of 1 March 1983.
This amendment was passed on 20 October 1983 by a 56 to 34
vote. While each of the sponsors of the bill, as well as other
members of the Senate, noted that this amendment is not
intended to affect the programs already in place at CIA and
NSA, the explicit language of the amendment itself could
possibly impact on the enforcement of those standard forms
which were revised in August pursuant to NSDD 84 after the
above 1 March 1983 date. Senator Mathias on page S14293, in
commenting upon a letter submitted by Lt. General Faurer,
Director, NSA, recognized this possible effect without
conclusively stating whether his amendment would in fact excuse
individuals from obligations already undertaken in this regard.
2. As you may know, the House passed its version of the
1984 State Authorization Act on 9 June 1983 . The House
version did not contain any similar amendment addressing
prepublication review requirements, thus creating an issue to
be resolved in conference by the two Houses. We thus have an
opportunity to submit our views on the attached amendment to
the Conference Committee if we believe our equities are strong
enough to merit such a submission. As noted above, the
enforceability of any new standard form signed since August is
questionable in light of the above amendment. Beyond CIA's
direct equities, there is an additional concern for the DCI
with respect to an amendment which prohibits the implementation
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of a directive designed to enhance the protection afforded
intelligence sources and methods information throughout the
federal government. If a conference letter is believed to be
appropriate, consideration should be given to whether the DCI
should file separate letters addressing the CIA's direct
concern with the amendment and an additional letter similar to
that submitted by Lt. General Faurer addressing the interests
of the Intelligence Community in general with the effects of
this amendment, or whether a single letter combining both
concerns would be more suitable. Of course, an additional
option is not to file any submission, relying on the numerous
comments in the attached Congressional Record which indicate
that this amendment is not intended to in any way affect those
programs in place at CIA and NSA.
3. After you have had a chance to review the attached
material and consider our options in this regard, I would
appreciate hearing from each of you on a recommended course of
action with respect to this matter.
Distribution:
STAT
1
- Each Addressee
1
- OLL Chrono (w/o attach)
1
- LEG File: Leaks
"1
- LEG File: Polygraph
1
- LEG File: Prepublicat
ion Review
1
- D/OLL
STAT
1
- DD/OLL
0 Signer
(25 October 1983)
STAT
- 2 -
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S. 14282 CONGRESSIONAL RECORD - SE. TE October 20, 1983
these leadtimes can be reached. There- distinguished colleague strikes a bal- The PRESIDING OFFICER. With-
fore. I urge my colleagues to reject the ance here that is reasonable and fair out objection, it is so ordered.
amendment of the Senator from Cali- under the circumstances. It is accept-. Mr. MATHIAS. Mr. President, this
fornia. able on this side. I know of no objec- amendment is a very simple one. It
tion. I understand"that it has been ap- does not attempt to alter, change.
DEPARTMENT OF STATE proved by the ranking minority repeal, enjoin, or otherwise in any way
AUTHORIZATIONS member, who is on the floor at the adversely to affect the relevant provi-
present
PRESIDING OFFICER. The present time and has signaled his ap- sions of National Security Directive
proval. 84. It simply would delay until April
question now recurs on S. 1342, which The PRESIDING OFFICER. The 15, 1984, the implementation of a new
the clerk will state by title. question is on agreeing to the amend- program of censorship of the writings
The bill clerk read as follows: ment. % of private citizens who have previously
A- bill (S. 1342) to authorize appropri- The amendment (No. 2377) was held important positions in the Gov-
ations for the fiscal years 1984 and 1985 for agreed to.
the Department of State, the United States Mr. ZORINSKY. Mr. President, I ernment of the United States of Amer-
Information Agency, and. the Board for In. ica.
ternational Broadcasting, and for other pur- move to reconsider the vote by which We are not, at this stage of the.
poses. the amendment was agreed to. game, trying to change the rules. We
The Senate resumed consideration Mr. PERCY. I move to lay that just say this is an important subject
of S. 1342. motion on the table. Mr. JOHNSTON. Mr. President, I The motion to lay on the table was and a serious subject, and let us take 6
months to look at it. Let us take 6
suggest the absence of a quorum.- agreed to. months to review it. -
The PRESIDING OFFICER. The Mr. ZORINSKY. Mr. President,- I
clerk will call the roll. suggest the absence-of a quorum. . What the proposal seems to do is to
The bill clerk proceeded to call the The PRESIDING OFFICER. The expand the system of prepublication
roll. . _ clerk will call the roll. review-of the writings of former offi-
Mr. ZORINSKY. Mr. President- I The legislative clerk proceeded to cials, and I understand the reasons
ask unanimous consent that the order call the roll. given for doing so. I think we all share
for the quorum call be rescinded. Mr. MATHIAS. Mr. President, I ask a certain sense of frustration in this
The PRESIDING OFFICER (Mr. unanimous consent that the order for area. There is President Reagan's jus- ,
MATTINGLY). Without objection, it is so the quorum call be rescinded. tified concern about the leaks of clas-
ordered. The PRESIDING OFFICER (Mr. sified information from within the ex-
AMENDMENT NO. 2377 COCHRAN). Without objection, it is so ecutive branch, and it is shared by, I
Mr. ZORINSKY. Mr. President, I ordered. believe, ever Member of the Senate,
send an amendment to the desk and AMENDMENT NO. 2378 certainly by myself. Many of us are
ask for its immediate consideration. [ance, Purpose: To prohibit the enforcement, disturbed that national secrets seem to
The PRESIDING OFFICER. The or implementation of certain rules. have become the common currency of
amendment will be stated. requiring prepublication review of the the daily press.-
The legislative clerk read as follows: writings of former officers and employees But the administration's response to
The Senator from Nebraska (Mr. ZOR- of the Government) , . the problem focuses on National Secu-
INSxY) proposes an amendment numbered Mr. MATHIAS. Mr. President, I send rity Decision Directive 84, and this di-
2377. ` - an amendment to the desk and ask for rective, issued last March, contains a
Mr. ZORINSKY. Mr. President, I its immediate consideration. - - number of provisions aimed at curbing
ask unanimous consent that reading of . The PRESIDING OFFICER. The leaks., None of these has been more
the amendment be dispensed with. amendment will be stated. controversial than the proposal to
The PRESIDING OFFICER. With- The legislative clerk read as follows: expand the scope and the coverage of
out objection, it is so ordered. The Senator from -Maryland (Mr. MA- prepublication censorship.
- The amendment is as follows: TIIIAs),. for himself and Mr. EAGLETON, Mr. National Security Decision Directive
On pagb 32. after line 7. Insert the follow- BEN2'SEN, Mr. BIDEN, and Mr. BRADLEY, pro- 84 imposes a new duty on all officials
ing poses an amendment numbered 2378. with access to the most sensitive se-
SEC. 210. Notwithstanding any other pro-_ On page 24, between lines 19 and 20,
motion. In the Sensitive al compartmented Wash-
vision of law not more than $20,000 of the insert the following- crets:
United authorized to be appropriated to the PREPUBLICATION REVIEW OF WRITINGS OF
United States Information Agency for fiscal FORMER FEDERAL EMPLOYEES ington bureaucracy, sensitive compart-
year 1984 or fiscal year 1985 shall be availa- merited information becomes SCI.
ble for domestic representation or entertain- SEC. 122. The head of a department or Officials who have had access to SCI
ment expenses, including official receptions. agency of the Government may not, before
April 15, 1984, enforce, issue, or implement would be required to make a lifetime
Mr. ZORINSKY. Mr. President, I _ any rule, regulation, directive, policy, deci- promise that, before publishing any
read from the committee's report: - sion, or order which (1) would require any writing about a broad range- of mat-
In approving USLA's budget, the commit- officer or employee to submit, after termi- ters, they will first submit their manu-
tee intends to limit USIA domestic represen- nation of employment with the Govern- scripts for censorship by the Govern-
tation allowances to the fiscal year 1983 ment, his or her writings for prepublication ment. This would be a permanent obli- '
level of $10.000. The committee sees no jus- review by an officer or employee of the Gov- gation. Whether her they are young men
tification for a quadrupling in domestic en- ernment, and (2) is different from the rules, and women, Cheer, or live to old
tertainment for high USIA officials at a regulations, directives, policies, decisions, or
time of record budget deficits and double orders (relating to prepublication review-of age, a promise binds them. It would
digit unemployment. . ? such writings) in effect on March 1, 1983. apply after the official leaves the Gov-
The State Department -appropri- Mr. MATHIAS. Mr. President, I ernment and returns to private life.
ations measure, which I understand wish the RECORD to reflect that I offer The number of officials who.would be
the Senate may consider next, allows this 'amendment on my own behalf required to make this pledge is enor-
expenditures up to $50,000 for domes- and on behalf., of the distinguished mous. -
tic representation. This amendment Senator from Missouri (Mr. EAGLE- We estimate 100,000 in the Depart
allows expenditures of no more than TON), who has taken a great personal ment of Defense alone and, of course,
$20,000, notwithstanding any other interest in this subject. .I also ask many thousands of others in the De-
provision of law.- - unanimous consent-to add as cospon- partments of State, Justice, Energy,
I have talked to the managers of the . sor the Senator from Texas (Mr. BENT- and other agencies. So it is not surpris-
bill, and they have indicated that they sEN), the Senator from Delaware (Mr.. ing that the issuance of National Secu-
. have no objection to this amendment.- BIDEN), the Senator from New Jersey rity Decision Directive 84 provoked in-
Mr. PERCY. Mr. President, I believe (Mr. BRADLESr), and the Senator from tense criticism of the proposed censor-
that the amendment offered by my New York (Mr. MOYNIHAN). ship system.
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October 20,?1983 _ NGRESSIONAL RECORD - SEN1
Mr. GOLDWATER. Well, now, could We are only here out of a sense of
we pursue this just a bit, because I frustration and lack of anyplace else
said I do not think this merits a full to go. I think the Senator from Mis-
floor fight, but I do think it is a sub souri would agree with that.
ject that should be discussed. I know Mr. EAGLETON. Will the Senator
my committee would be very happy to yield for 30 seconds on Senator GOLD-
sit down and, while I cannot say with WATER'S point?
any degree of certainty, I feel that I Mr. MATHIAS. Yes.
could promise that the CIA and the Mr. EAGLETON. The difficulty
DIA would be willing to sit down and with the proposal by the Senator from
see if we cannot reach some limits to Arizona is that implementation has al-
this whole problem. I.think there is a ready begun. It is, not as if we were
problem. still in spring training or in the bull-
Mr. MATHIAS. And I am not pre- pen and not yet on the playing field.
pared to say there is no problem. I We are very much on the playing
agree. I cannot speak for my cospon- field, and implementation Is in proc-
sors, but I suspect that if we could ess.
have some assurance that the program So we need a postponement or a
would not be implemented prior to the delay in order to avoid having imple-
time that we had been able to make mentation become finalized within a
that kind of a thoughtful study, prior, matter of days, a few weeks at most.
to the time that we got the answers to Mr. MATHIAS. I think the Senator
the questions-legitimate questions, from Arizona is suggesting that we
questions such as those the chairman would have some commitment by the
of the Foreign Relations Committee administration not to proceed with im-
just asked-I would prefer the ap- plementation while we have this
proach of the Senator from Arizona to agreement. -
just simply, arbitirary 6-month ban. Mr. GOLDWATER. Let us get it
But I would like the Senator from Mis- ? straight. I cannot commit the adminis-
souri and the other cosponsors- to tration.
speak for themselves on that. Mr. MATHIAS. No, no.
Mr. -GOLDWATER. I proposed that Mr. GOLDWATER. But I think I
question without having even consult- can commit certain parts of it.
ed with my very able cochairman, the. Mr. MATHIAS. I understand that. I
senior Senator from.New York, who is did not mean that you were speaking
on the floor. I have a strong suspicion on behalf of the whole administration.
that he would lean in the direction I But that if, as a result of this colloquy,
have recommended to let- us take a - there is somebody-we are not sup-
look at this whole thing. Because we posed to point to the gallery around
are not just talking about intelligence here-but there might even be some-
matters, we are talking about matters one in the gallery who could -whisper
that occur in every agency of Govern- in the proper ears and we could get
ment that somebody might want to that kind of agreement. -
keep secret: And, as you know and I Mr. GOLDWATER. Before I sit
know, the most used rubberstamp in down- and before the Senator from
this town is that red one that says New York speaks to this subject, I do
"Top Secret." - not think there is any disagreement-I
So I would like to ask the Senator if am addressing this. to the Senator
he would give serious consideration to from Maryland-there is no disagree-
the idea of thrashing this out our- ment in the idea that certain informa-
selves without bringing it to a floor - tion disclosed by anybody can be
fight. As of now, I do not think it is harmful to our couhtry but, I think,
worthy of that kind of attention, al- more importantly than that, the use
though I think it has very, very seri- of name, rank, serial number, phone
ous implications. Because once we pass number, address and so forth, can and
it as an amendment, you know that a actually have worked against the
date certain does not mean a thing: safety of individuals.
That is the end of it. That, I think, is what the President
Mr. MATHIAS. Well, I think the was addressing himself to. It is what
chairman of the Intelligence Commit- we in the Intelligence Committee are
tee makes a good point and one with constantly concerned with, as well as
which I have sympathy. That Is exact- is the sponsor of this amendment.
ly the approach Senator EAGLETON and What do we do with the publication of
I took. We sought to have some kind matters which can be dangerous?
of a general meeting in which these I cannot possibly conceive of 100,000
matters could be discussed while we people working for the Pentagon ever
got the information and as long as we sitting down and writing anything
were assured that the program would except a check once in a while.
be implemented while we were sitting That is one of the results, I think.
in the room. So that we had our chairs that could come from a discussion, a
pulled out from under us. But we just limitation of what we are talking
simply have not been able to get any , about. - -
satisfaction. Mr. MATHIAS. The Senator is pre-
Meanwhile, of course, the standard cisely right. I think it is unfortunate
nondisclosure agreements have been we have not had that discussion up to
released by the Justice Department on this time. -
the 25th of August and they were offi- Mr. MOYNIHAN. Will the Senator
cially promulgated a few days later. 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 (w'ith top secu-
rity [SCII 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 ago, 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 ONGRESSIONAL RECORD - SEN,-i TE October 20, 1983
procedure. First, it is most disturbing the Court bearing a heavy presump- not the individual will make determi-
because it represents an unwarranted tion against its constitutional valid- nations about which materials qualify
and unconstitutional extension of the ity." New York Times v. United States, for submission. This is because the
Snepp principle enunciated by the Su- 423 U.S. 713, 714 (1971). First amend- standard used to make the determina-
preme Court in Snepp v. United States, ment protection is at its zenith when tion is frighteningly nebulous and
444 U.S. 507 (1980). It is vital to recog- restraints on political speech are con- only the Government can know what
nize just how far beyond all reason- templated, as they are here. The cen- is intented to be screened. Individuals
able limits the President has extended sorship system may well have the simply will not be able to discern the
Snepp? effect of prohibiting citizens from meaning, of the language in the agree-
The Snepp case upheld the prepubli- criticizing their government, thereby went, and may well submit nearly all
cation process in the narrow context muzzling public debate. One eminent their writings-even if they are uncon-
of the CIA and its unique mission. first amendment scholar espouses the vinced that any materials contain of-
Frank Snepp, a former CIA agent, following view ' toward threats to fensive information.
breached the secrecy agreement he public speech that is most vital to our This dangerous
signed by publishing a book about CIA form of govenment: the practical rtain. es-
activities without prior submission for agreement is virtually certain,
To be afraid of ideas, any idea, is to be pecially because an Individual's good
od
agency review. The Court found a unfit for self-government. Any such sup- faith, reasonable conclusion that sub-
"breach of fiduciary obligation" even pression of ideas about the common good,
though the CIA discovered that the the First Amendment condemns with its ab- mission is not required, would not pro-
book did not contain any classified in- solute disapproval. The freedom of Ideas vide a defense to a person facing civil
formation, and the Court invoked a shall not be abridged. suit by the Government for unlawful
money penalty by establishing a con- A. Meiklejohn, "Political Freedom" disclosure. This has the effect of forc-
structive trust of the profits from (1960), at 28. This fundamental con- ing individuals to suspend their judg-
Snepp's book for the benefit of the nection between free speech and self- ment, replacing it with the Govern-
Government. - - government was recognized by the Su- ment's. Former Attorney General Civi-
Extending Snepp beyond. its facts- preme Court in the Pentagon Papers _ letti, recognizing how the Snepp prin-
confined to intelligence agencies-is case, presenting a similar conflict be- ciple may be expanded and miscon-
not wise policy. Nor is it what the tween national security and the first strued in this and other ways, issued
Court contemplated. Yet the adminis- amendment. In one of the six concur- guidelines (quickly revoked by Presi-
tration plunges ahead, broadly apply-- ring opinions, two Justices maintained dent Reagan) which stated that con-
ing the censorship procedure to offi- that: sideration should be given to the
cials with SCI access, regardless of Secrecy in government Is fundamentally degree of willfulness involved in an in-
their agency, or whether they are poll- anti-democratic, perpetuating bureaucratic dividual's failure to submit material
cymakers or intelligence officers. We errors. Open debate and discussion of public This surely would have given this
are told that in the DDepart- issues are vital to our national health. On whole process a greater air of volun-
are t alone, over the Defense efe employees public issues there should be "uninhibited, tariness, and was an attempt to allow,
robust, and wide-open debate" New York in the words of former White House
men - 100,000 will be affected. This is a substantial Times v. Sullivan, 376 U.S. 254, 269-270. oyd leap from the narrow circumstances New York Times v. United States, 403 Counsel Lnts Cutler, mmodate play
leading to the Court's opinion. Never- _U.S. 713, 722 (1971). governmental ejoints aond first first amen both
theless. one would have assumed that I have addressed. my principal con- and
since only officials with access to SCI cern that the administration's prepub- needs." The President's directive
must submit their manuscripts, the lication review procedure unconstitu- allows for no such reasonableness
scope of materials subject to deletion tionally extends the Snepp case. My The "I know it when I see it," sweep-
by the Government. would be limited second major objection to the prepub- ingly broad standard to be- applied by
to SCL lication agreement concerns how it is Government censors is simply unac-
This is not the case: the expansion enforced There is no assurance that ceptable. Floyd Abrams, the noted
of Snepp continues to grow. The direc- each agency's review board will consist constitutional lawyer, made this point
tive requires submission of "all materi- of objective persopnel, or that screen- in a recent article in the New York
als, including works of fiction ? ? ? ing will be neutral and not political- A Times:
which contain or purport to contain review board may -consciously or un- - Under the new policy, there is no need to
' ? any SCI" or are "derived from
consciously take a more restrictive submit for prepublication review material
SCI," (paragraph 5). The directive also view of. material that is critical rather consisting "solely of personal views, opin-
permits 'Government reviewers to than favorable to the agency. More- ions or judgments" on topics such as "pro-
delete information that is "classifi- over, the dangers of having, for exam- posed legislation or foreign policy." But the
able" (paragraph 1), or that is "subject pie, the Secretary of State in one ad- Catch-22 is this: If the opinion even implies
to classification" (paragraph 7). I have ministration. have his work reviewed t
.. falls he any range of statemenr v ewof fact" that material must
no doubt that a former CIA director, and censored by his immediate succes- be cleared , ov e r the muss
for example, would know the precise sots and obvious. phedi. by the he government
most opinions opniniot ons w before it is
published. oror th -ex-
meaning of these terms, whether or There is no assurance that the pressing about American defense or intelli-
not a classification stamp appeared on review board will give rapid considera- gence policies - at least Imply some pro-
the documents used in preparation of tion to reviewable materials.-The pro- scribed facts, what the new requirement
a manuscript, but I -seriously question cedure is supposed to take not more amounts to is a massive Intrusion of the gov-
whether others, including many in than 30 days Of course, for newspaper ernment into the right of former officials to
this Chamber, would understand the articles, which p.re-invariably time-sen- speak and of the public to listen.
scope of prohibition contemplated. sitive, even this delay would be unac- . "The New Effort To Control Tnfor-
The prepublication contract-going ceptable. Moveover, the limited but mation," by Floyd Abrams, the New
far beyond Snepp and then far beyond telling experience we have with the York Times Magazine, September 25,
the Government's purported interest CIA procedure, in operation for sever- 1983 at 25. If former officials feel com-
in only SCI-becomes a trap for the al years, suggests that contested pelled to "err on the side of submis-
unwary. The net that the administra- review can take months and even sion," or to alter their writings in an-
tion has cast with this directive is, I years ticipation of censorship, this proce-
am compelled to conclude, far wider The administration contends that dure will chill the exercise of free
than Is proper and necessary and Is the agreement is enforced through speech. Such a result will have grave
therefore unconstitutional voluntary compliance. But I believe consequences. -
Our society places great weight on that the administration intends for One of America's most cherished
the first amendement. The Supreme the censorship agreement to operate values is an open society where people
Court has held that "any system of more coercively. The agreement is are. free to speak their minds and to
prior restraints of expression comes to drafted so that the Government and - criticize their government. This open-
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October 90, 1983 .ONGRESSIONAL RECORD - SEN..,rE
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," a
"stuffing the mouths of any and all
public officials who, like Adam and
Eve, have tasted of the knowledge of
good and evil." s 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." a -
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 Times editorial, September 22, 1983.
Newsweek, September 25. 1983 at 38.
Washington Post op-ed article by Lewis W.
lepham. 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 10 this point.
There being no objection, the testi-
mony was ordered to be printed in the
RECORD, as follows:
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
mechanics of such censorship anc'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
- TESTIMONY OF GEORGE W. BALL
Mr. Chairman: I appear here to urge your
committee to express Its disapproval of Na-
tional Security Decision Directive-84,
issued on March 11, 1983.
I do not represent any organization or
other special interest I 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-
ficial 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 public dor^.ain. -
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 SCI 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 it 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-
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years, Administrations are often tempted to
use the classification procedures to conceal
or confuse actions or policies and protect
our political 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 }! immersion of their personnel -in the
refusal to take a polygraph examination world of secrecy and their perhaps not
should not be admitted in evidence. They ,;altogether keen sense of what is and is
have explicitly recognized the justice tat not classified, that merges so much in
such examinations and the injustice that
would follow if a negative inference were: their work, and the fact that they do
drawn when an American citizen stood on not work at the levels of policy forma-
his rights and refused to run the risks of an Lion. There has been no objection to
erroneous judgment resulting from a poly- this restriction on NSA and CIA per-
graph examination. sonnel.
hope this committee will strike a blow for ? `" A- ,. I ..,...-
freedom of public discussion and the avoid- pally recounted by the memoirs of
ance of official coverups by objecting to this former Government officials, not the
obscurantist directive. carrying out of policy. .
Mr. EAGLETON. Mr. President, I Mr. President, although this amend-
yield the floor. ment would not affect the prepublica-
Mr. MOYNIHAN and Mr. DENTON tion review program of the NSA, the
addressed the Chair: - Director of the Agency wrote to us
The PRESIDING OFFICER. The' urging that we reject it. I have in-
Senator from New York. quired of the general counsel of the
Mr. MOYNIHAN. I thank the Chair.- NSA, has there been a disclosure of
Mr. President, I rise in support of classified intelligence by a former non-
the amendment offered by the distin- NSA, employee in published writings?
guished Senator from Maryland (Mr. The general counsel believes there has
MATHIAS) and his equally distin- been one and understandably did not
guished colleague, the Senator from feel free to give us the details, and we
Missouri (Mr. EAGLE TON). I am pleased did not need the details. But one.
to cosponsor this measure which will Read the front page-of the Washing-
postpone the implementation of what ton press or the national press on any
appears to be an unwarranted and given day and see if you can count as
overly broad new system of censorship few as one, given in an unauthorized
of the writings and speeches of former matter.
Government officials. The delay will That is our problem, Mr. President.
afford the executive branch, as well as Not an-open publication, signed, pub-
the Congress, as- the distinguished lished. acknowledged. The executive
.Senator, my revered and beloved branch told the Governmental Affairs
chairman of the Intelligence Commit- Committee a few weeks ago that it
tee, states, an opportunity to consider found only one or two instances in
the wisdorrf of this action. I should like which former Government employees
to recount the history of this matter disclosed classified information in pub-
which clearly demonstrates__ the need lished writings.
for this amendment. What would be a problem is the sti-
On March 11, 1983, the President fling of free speech with respect to
issued a directive intended to prevent areas of the utmost public need. The
-unauthorized disclosures of classifed memoirs of our Secretaries of State
Information through leaks to news and National Security advisers and
media. A singular feature of this direc-
,;ONGRESSIONAL RECORD - SEI\A rE - October 20, 1583
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 umber 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-
ernment in power decided that something
could not be written or said, to judicial
review. .
nce A
enc
nd th
ti
N
S
, ba.
g
a
a
onal
ecu-
e
. 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
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
such like have typically argued -the.. action, as an alternative to governmen-
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CONGRESSIONAL RECORD - SEA i-ATE S 14289
tai 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 I 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 Councir 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--
elation 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- -
authorized disclosure-for ' example,
leaks. Certainly, a-former official may
speak or write in a manner to avoid ex-
press or implied confirmation of such
information.
I offer the foregoing interpretation
to rehabilitate a seriously flawed
effort to place limits on an unreason-
able and sweeping submission require-
ment. However, unless the executive
branch modifies the agreement or pro-
vides an authoritative interpretation,
former officials will have to proceed at
their peril in speaking out on crucial
issues of public policy. I can think of
no more crucial issue than arms con-
trol. Let us suppose that 3 years
hence, former Defense Secretary
Weinberger prepares an op-ed piece
containing the following remark:
The proposed START Treaty Is not in the
Nation's interest, as National Technical
Means will not permit adequate verification
given deception and camouflage techniques.
Must he submit it to censorship by.
his successor? I do not believe he
should be required 'to do so. Public
debate is enhanced when former
policy officials can promptly and
freely offer an opinion which draws on
their experience, but does not disclose
classified information. Surely the hy-
pothetical statement does not compro-
mise any secrets. It is essentially an
opinion and the only facts mentioned
are well known to the public: That we
have satellites that collect information
on strategic arms and that deception
and camouflage techniques can be
practiced.
Nevertheless, the former Secretary
could not be certain from a reading of
the new nondisclosure agreement that
his successor will agree that he is not
obliged to submit his proposed state-
ment. He may not want to take the
risk that the Justice Department will
institute a civil action against him.
Indeed, he may be chilled and forbear
from speaking out. The new agree-
ment does not clearly preclude this
result. And until it is amended or offi-
cially interpreted to do so it should
not be permitted to go into effect.
Therefore, Mr. President, -I strongly
support the amendment. I Would hope
that the executive branch would take
appropriate action to remedy its flaws.
If it does not, I, for one, would support
a legislative approach.
I- yield the floor to the principal
sponsors of the amendment to see if
they do not agree with me that we
ought to press this amendment, adopt
this amendment, enact it, and then sit
down in good faith with the adminis-
tration and say, "Now, what is the
problem you are trying to solve? We
want to solve it with you." In the In-
telligence Committee, we have just re-
ported out a bill authorized by the dis-
tinguished chairman which does,
indeed, provide further restrictions on.
Freedom of Information Act access to
documents of the Central Intelligence
Agency. We felt that there were cer--
.tain areas the acts search and review
ever, at the time I spoke, the direc-
tive's implementing regulations had
yet to be written. It was my hope then
that my views, as well as those of
others-would be taken into account by
those responsible for drafting the im-
plementing rules so that they could
accomodate first amendment values.
. Mr. President, I regret to say that
the new standard form secrecy agree-
ment-the adoption of which was an-
nounced on August 24-is a significant
disappointment. The nature of the
former employee's commitment under
the agreement is conveyed in language
that challenges the U.S. Senate for ob-
scurity. Indeed, I would go further to
say that this language appears to have
been modeled on some of the worst
written sections of the Internal Reve-
nue Code. Paragraph 5 requires that a
former official submit for review any
information he contemplates publish-
ing concerning intelligence activities-
even if the information is unclassified
and even if it has been 10. 20, or more
years since his departure from Gov-
ernment service. In an apparent effort
to limit the scope of the submission re-
quirement The following sentence was
included in paragraph 5: -
However, I am not required to submit for
review any such materials that exclusively
contain information lawfully obtained by
me at a time when I have no employment.
contact. or other relationship with the U.S.
Government, and which are to be published
at such time.
Mr. President, there can scarcely be
a doubt that this provision is the work
of a committee. And a committee of
lawyers at that. Syntactical awkward-
ness and negative formulation are
their hallmark. If the however clause
is . given a strict literal reading, it
means that former Defense Secretary
Weinberger would have to clear a
manuscript quoting and commentating
on William Colby's unclassified mem-
oirs of his CIA experience, Honorable
Men, if he (Mr. Weinberger) read the
book while he served at .the Defense
Department; but he would not have to
clear the manuscript if he read the
book before or after he served as De-
fense Secretary. It appears as though
some neoscholastic spirit has inspired
this clause. Surely a system of censor-
ship which turns on when a Cabinet
Secretary reads open source material is
in the same league with, a philosophy
which speculates about the number of
angels which can fjt on the head of a
pin. But it is not a practicable system.
Nor is it a prudent system.
Now, we are a- grownup country.
This cries for further inquiry.
To avoid absurd results, I would sug-
gest that the however clause should be
interpreted so as to preclude any sub-
mission requirement if the former offi-
cial publishes material which merely
cites or draws on information in the
public domain-that is, which is ob-
tained or obtainable while he is not
employed by the Government.. Of
course, classified information may be
in the. public domain as a result of un-
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CONGRESSIONAL RECORD - SENATE October 20, 1983
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. -
r4r. 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-
lished 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-
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-
teeting sensitive intelligence sources and
requirements inhibited the work of
the Agency, inhabited 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
Was 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 Foreign 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.
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
partment of State, and the Depart- Committee wishes to finish his bill
ment of Defense, appearing as wit today-wanted it through, as a matter
nesses before a congressional commit- of fact, as of 1 o'clock today-so we are
tee, would say that there had been at some kind of stalemate. - -
only one confirmed case if there had I should. like to offer further infor-
been more. - - mation in opposition to the amend-
Mr. DENTON. I did not mention ment.
only one case. You said that. . Mr. MATHIAS. Mr. President, will
Mr. MATHIAS. The witnesses before the Senator yield? - "
the comthittee said that. - - Mr. DENTON. This will take -only a
Mr. DENTON. According to this few minutes. -
letter, there is a discrepancy, which - Mr. MATHIAS. It might be useful to,
the letter indicates. The letter from make a comment of two on the NSA
the National Security Agency Direc- letter while that subject is up.
tor, Lt. Gen. Lincoln D. Faurer, reads: . Mr. DENTON. May I finish?
Dear Senator Mathias: The purpose of . Mr. MATHIAS. Yes.
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 hashad-in effect for-some years reg-
ulations establishing - a prepublication
review program for NSA personnel; this pro-
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. - I . .
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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*Jon upon any of us, there have been a honor that the gallant Senator from 241 contained classified information
number of leaks from staffers and Alabama brings to this Chamber, as he that was protected by the directive
others in this body and In the House brought to his career, but honorable and was accordingly deleted.
of Representatives.-- men and women not intending any I believe that all 241 of those exam-
Mr. MATHIAS. The reputation of harm to their Nation. pies were written by men who were at
Senator GOLDWATER'S committee has NSA and the CIA have to do this be- least as honorable as I and indeed per-
been excellent. They have been the cause much of what their employees haps as honorable as the Senator from
trustees of the highest secrets of this deal with is simply technical; and if New York.
Government. adversaries know what we know, then In addition, many Government em-
Mr. DEN T ON. I do not deny that. we have lost what we know. ployees who did not necessarily have
Mr. MATHIAS. I do not think we I understand the one ease cited by access to sensitive compartmented in-
can accept an implication that there NSA involved.a former contract em- formation, voluntarily submit writings
have been Senate leaks. ployee. I do not know, but I can imag- for prepublication review.
Mr. DENTON. I believe there have ine that he was involved in some very In conclusion, at this point let me
been Senate leaks, not necessarily sensitive activity and may well have just say that I firmly believe that clas-
from that committee, but I believe given a paper at the American Society sified Information must be protected
there have been leaks from both of Engineers. from even an inadvertent disclosure
Houses. I might have been the source But that is not the leak problem. from those within our Government
of one, myself. Our problem is the deliberate disclo- who have lawful access. I believe it can
My book was submittted to the De- sure of ? sensitive information by per- be overdone. I believe that the NSA
partment of Defense voluntarily, and sons within -Government, some of Director is not a politician nor a man
they found inadvertent disclosures in them intending to advance the pur- who is interested In promoting or de-
It. I voluntarily assented to the dele- poses of administration, some willing fending the administration politically.
tions of those portions from the book. to block it. You typically find that I believe he is speaking in the national
I agree with sunshine in Govern- there is a policy fight going on. That is interest as he sees it when he objects
ment. I assure my colleagues that op- a problem of morale and self-regard to a 6 months unilateral congressional
position on my part to this amend- and standards. That is not what we delay in that which the executive
ment is not arbitrary. It is one born in are dealing with here. We are dealing branch has found in the national in-
the knowledge that men have died be- with the inhibition of free speech terest regarding unauthorized disclo-
cause.of inadvertent disclosures. which is what -the published material sure.
Let me offer one example. I admit is. I plan to vote against this amend-
that it is a little beside the point, but I Mr. DENTON. Mr. President, will ment and encourage my colleagues to
believe it will be informative and rela- the Senator yield? ? do the same. I believe we must delay
tive. Mr. MOYNIHAN. I am happy to until Monday and hear the whole case
Before the raid on Vinh during the yield. from those who are trying to protect
Vietnam war, in 'retaliation for some- , I yield the floor.- our security but have not yet gathered
thing that had been done to our side, The PRESIDING OFFICER (Mr. their material together.
the President of the United States HECHT). The Senator from Alabama. But I feel we will be acting unwisely
went on the radio and television, miser Mr. DENTON. Mr. President, I am if we adopt this amendment with the
takenly thinking that he had been iii- / personally happy to hear the consid- little information we have at this
formed by the carrier commander that fired and very generous remarks re- point.
the strike had been launched against garding me personally.
~ Mr. President, I oppose this amend-
Vinh. He thought that the carrier I would say that if anything my in- ment to the Department of State Au-
commander, in saying: "The strike has advertent disclosure, which would thorization Act, S. 1342, proposed by
been launched," meant that the planes have gone through and done -this
the senior Senator from Maryland,
had hit the target. Nation some harm, as the Senator. Me MATHIAS.
So the President went on the air and says, came from someone who was at amendment attempts to delay
he is amendment attempts to de ay
said to- the world: "We have struck least trying to be honorable but made This
Vinh." an error. If my book had been pub- the implementation mi of "Safe-
were had not struck Vinh. The planes lished with that information there,-it rity e en No. 84, entitled
were en route. The antiaircraft batter- would have done harm to the security guarding National Security Informa-
ies were alerted, and we lost some good interests of the United States. tion, " which was signed by the Presi-
men that day by -an inadvertent The review only took a few days. I dent on March 11, 1983. Of particular
remark by the President of the United now wish to offer the statistics regard- concern, apparently, to the Senator
States. I think this example regarding ' ing prepublication reviews which have from Maryland, is paragraph 1b,
security requirements should be con- taken place so far. _ which requires all persons with au-
sidered. There seems to be an implication of thorized access to sensitive compart-
But I ask that we not try today to great delays, but the statistics which I mented information (SCI) to sign a
impose a 6-month delay without fur- offer today are to the contrary. The nondisclosure agreement which "in-
ther consideration of the matters by directive, 'in fact, requires the review eludes a provision for prepublication
the whole Senate. to be conducted within 30 days of sub- review to assure deletion of SCI and
Mr. MOYNIHAN. Mr. President, I mission. other classified information." -
say to the gallant Senator from Ala- Last year, for example, the CIA con: The Senator from Maryland con-
bama. who has earned the respect of ducted 213 such reviews and complet- tends that such nondisclosure agree-
this Nation as few men in our time, ed the same within an average of 13 ments requiring prepublication review
that we are not talking about the inad- days. violates the former employees' first
vertent mistake of a President, and we For short writings, the reviews were amendment rights to free speech.
are not talking about the well- or III- conducted in a manner of hours. . In fact, the Supreme Court has re-
intentioned disclosure of information I have heard suggested that to date cently upheld the constitutionality of
by persons in office secretly to the the administration has cited only one prepublication review for CIA employ-
press. We are talking about books and or two instances in the past 5 years in ees in the case of Snepp v. United
articles published. which former officials of State, Jus- States, 444 U.S. 507-(1980). -
Mr. DENTON. That is why I offered tice, or Defense Departments have re- The protection of the national secu-
the example of my book. - vealed classified information without rity Information is a primary and fun-
Mr. MOYNIHAN. And we are talk authorization. damental constitutional responsibility
Ing about books and -articles published -The fact is that since 1977 some 929 of the President -that derives from his
by persons not - perhaps with the Items have been submitted to the -CIA responsibilities as Chief Executive,
degree of intense sense of Nation and for prepublication review, ? of which Commander in Chief, and the princi-
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S 14292 CONGRESSIONAL RECORD - S. ATE October 20, 1983
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 officials 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 catego-
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.D. 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 classi-
fied 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
rnanner.
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-
lication of my-book dealing with my,
experiences as a POW In North Viet-
nam, 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
have lawful - access. The President
must be allowed to take the necessary
step to fulfill his constitutional duty
to safeguard the national security by
safeguarding classified- information.
Any infringement of the President's
ability 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. Mn President, let
me say to the Senator from Alabama
that is is not the desire of the sponsors
of 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
been 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, Senator
GoLDwATEIt -
Speaking only for myself, it would
be agreeable to me as long as we had a
commitment that implementation
would be suspended during these dis-
cussions. I think It would be the pref-
erable, the more civilized way to pro-
ceed.
I a.m 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
Agency 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 I 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-
worked with our staffs in answering,
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-
swers he wishes. I only ask for a few
days to allow the administration to
present their case. -
Mr. MATHIAS. Mr. President, the
Senator from Alabama has mentioned
the National Security Agency. Let me
say to him that I agree with him fully
in his estimate of that Agency. I think
It is one of the most. extraordinary
agenices of the U.S.. Government. It
has been my pleasure to know the
successive Directors of the Agency:
Without exception, they have been ex--
traordinary men drawn from the uni-
formed services and have provided the _
highest kind of leadership in a very
difficult and demanding field.
In fairness, I think we should put
the Director's letter of October 20 in
the RECORD, and I ask unanimous con-
sent to have printed in the RECORD
that letter. "
There being no objection, the letter
was ordered to be printed in -the
RECORD, as follows: -
NATIONAL SECURITY AGENCY.
CENTRAL SECURITY SEaVICS, .
Fort Meade, Md., October 20, 1983.
Hon. CHARI.Es MCC. MATHIAS,
U.S. Senate, -
Washington, D.G,
DEAR SENATOR MAT$IAS: 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-
matien (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.
'NSA has had in effect for some years reg-
ulations ' establishing ' a prepublication
review 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- Mr. MATHIAS. That is a possible in- review program to extend to recipients
ment. However, the general extension of a terpretation, but I think the most im. of NSA Information. The letter says if
prepublication review program to recipients portant thing that the Director says is that review is halted it is
of NSA Information only commenced as a going to
result of the March 1983 directive. If Imple- the thing that reinforces 'what the cause great problems. He is talking
mentation of the directive is halted, many Senator from New York has also said. about books just as you are, prepubli-
persons who receive our most highly classi- I refer to that line in the letter in cation review of books. So he is not
fled signals Intelligence Information would which he says that our experience has talking about leaks which come from
be excused from obligations now in effect to been that most unauthorized disclo- ' other tourse s but Ieak u' h
?
h
,
1 a
submit materials , c ppear
for prepublication review. sures of classified signal intelligence.' in books, and I think the result of this
Our experience has been that most unau- are by non-NSA personnel, amendment would by exclusion
thorized disclosures of classified Si-al. in-
g
And I think leaks come from any-
telligence are by non-NSA personnel, and, where and it is leaks that are the prob-
based on this experience, I have considered lem. Leaks, of course, are usually
the general prepublication review program
for individuals with SCI access throughout anonymous. No one knows who makes
government to be a significant step in pro- a.leak unless it -is the President or the
tecting sensitive intelligence sources and Secretary of Defense or someone leak-
methods. Accordingly, while, as stated. NSA ing deliberately, but the great volume
personnel- would not be affected by the of leaks are anonymous. When they
amendment, the protection of NSA informa- appear, no one knows who the source
tion could be. and as I believe signals intelli- was, and we have a great flurry. We
gence to be of vital importance to the stir around, members of the press are
United States, I trust you can understand asked to produce their notes, they
my concern that the Congress might enact
the amendment. refuse, and ultimately we seldom find
Sincerely, - out who is the leaker. But in the cases
LxNcot.N D. FAUaca, we 'are talking about-the cases de-
Lieutenant General, USAF, scribed by the Senator from Missouri
-Director, NSA/Chief, CSS. - and the 'Senator from New York-we
~Mr. MATHIAS. Mr. President, when are talking about people who publish,
the letter is perused, it will be clear, as who sign their writings, who put their
the Director says, that NSA is not af- pictures on the back jacket of their
fected by this amendment. I should books in the hope that their hand-
add at this point that neither is the some faces will help sales, and who are
Central Intelligence Agency affected subject to the criminal law. These are
by this amendment. Each of those not people who will get off scot-free if
agencies has its own programs and they disclose classified information.
those programs- would not be inter- The U.S. attorney can rap on their
fered with in any way by what we are : door the day after they have had the
talking about today, the 6 months' publisher's party and haul them into
I do think that the Director has per- So let me say to the Senator from
baps gone as far as he could go in stat- Alabama it may well be, and I would
/ ing the extent to which the directive not stand here and deny, that we
has already been implemented. After should tighten up the criminal law in
all, the standard forms were not pro- this respect. That is a subject for an-
mulgated until late August. So I sus- other discussion. -
pest that if any of what he called Mr. MOYNIHAN. It is a subject fie
signal intelligence consumers have in can discuss, if I may say, in the confer-
fact undertaken any obligations that ences that we are proposing.
were not applicable prior to the issu- Mr. MATHIAS. That is right. It is a
ance of the directive, those obligations subject that can be part of the overall
have not changed very much. general discussion. But those are the
I do not follow what he is trying to ways in which I think you deal with
+'. tell us when he says that this amend- the- problem of the distinguished
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.
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 security, 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-
write a book. You are not dealing with
the clandestine anonymous leakeir who
does so much damage, and I think that
simply giving us time to talk about
this is in the national interest. Ido 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
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
committee was Admiral Gaylen, a - latitude afforded under the Directive will
former Director of the National Secu- , inevitably invite both delay in publishing
rity Agency himself. I do not want to and politically motivated excisions which
will have the effect of harassing those who
characterize his testimony, because it would criticize their political successors.
is a matter of public record and can be Whether what will be lost is timely debate
read. But I think it is fair to state that of foregone publishing. opportunities, the
he had some serious reservations loss under the First Amendment will be in
about National Security Decision Di- calculable. _
rective 84. - It is true, of course, that CIA person-
Mr. DENTON. Mr. President, I ask nel. are already required to submit.
the gentleman questioning the NSA their writings for prepublication
letter here, if it is not. to be under review. Intelligence personnel tend to
stood that NSA found good reason to learn many more details about highly
implement the March 1983 directive sensitive intelligence sources and
which _ caused .the. ''prepublication, 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 its. 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 nontntelligence 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 RECORD-
The editorial follows:
[From the Minneapolis Star & Tribune,
Apr. 18. 1953]
CENSORSHIP AND NATIONAL SECURITY
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 squash civil liberties under the
guise of protecting the nation.. -
Among other thinm 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
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 R.ostow, 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. Experiegce 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-? -
O Mr. HUDDLESTON. Mr- President,
the amendment offered by Senator
MATHIAS and Senator EAGLETON to sus-
pend until April 35, 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
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 intelligence 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 SCL any description of activities
that produce or relate to SCL or any Infor-
mation derived from SCI:
(b) any classified information from Ittelll.
gence reports or estimates; or
(c) any information concerning Intelli
:gence activities, sources or methods. -
government experience. That requirement dissent or covering up mistakes. "
applies not. only while employees remain in --r-In the CIA and other components of
government service, but for the rest of their ! the intelligence community; Federal
lives. It applies not only to manuscripts that employees are expected to assume the
discuss sensitive government activities, but' special obligation of submitting for
also to innocuous fiction and satire- The, classification review any writings on
penalties for failing to comply-whether or not a manuscript contains classified infor-
mation-include confiscation of all profits publish after leaving the Government.
from publication. - - This is necessary because of the excep-
The secrecy order covers senior officials in tional nature of intelligence work, In-
federal agencies, In the military and in the eluding the day-to-day exposure to de-
foreign service, as well as top White House tails of intelligence sources and meth-
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
gods. -
L-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-,
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October 20, 1983 )NGRESSIONAL RECORD - SEN. E
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 EAGLETON 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 implementa-
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-
S14295
titular, raise serious questions, in my directive. This amendment was added
opinion. to the Defense Authorization Act and
National security leaks have- oc- prohibits the Department of Defense
curred in this and previous administra- from taking adverse action against
tions. It has been asserted that such military or civilian employees based
leaks have often come from high level solely on lie-detector tests or refusal to
officials within each administration. submit to them. The bar is' effective
In this administration, the focus has until April 15, 1984.
been on the adequacy of current regu- ' On September 13, 1983, the Senate
lations. President Reagan on March Governmental Affairs Committee, of
11, 1983, issued a Presidential directive which I am a member, also held an
on "Safeguarding, National Security' oversight hearing on the directive. At
Information." The directive is intend- this hearing we received extensive tes-
ed to strengthen efforts to protect na- ' timony which reaffirmed concern over
tional security information from un- the use of polygraphs as well as the
lawful disclosure. The directive is prepublication review provision of the
based on the recommendations of an directive.
interdepartmental group chaired by I am extremely concerned with the
the Attorney General of the United
States. or indirect implications of . the
.
ecutive Order 12356, only that infor-
mation whose disclosure would harm
the national security interests 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
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-
pecially 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, "at odds with
the concept that widespread dissemi-
nation of information from diverse
sources furthers the public interest-
hostile to the basic tenent of the first
amendment"; and as a whole, a blatant
act by the Reagan administration,
which seems"obsessed with the risk of
Services Committee which temporarily information, of its potential for lead-
bars the lie-detector provision of the ing,the public to the 'wrong' conclu-
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CONGRESSIONAL RECORD-- SENr1,TE October 20, 1983
sions," to permit the Government In order to allow for further con-
itself to decide what information gressional and public scrutiny, I urge
about its conduct is 'meaningful."' my colleagues to support this amend-
Without objection. I ask that a copy of ment, which temporarily blocks the
this article be made a part of the implementation of the prepublication
RECORD following my remarks. :review section of the President's direc-
Leaking sensitive information can be ?tive consistent with action already
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 examinations, both in general
and in the context of national security
'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, 1983]
THE 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
investigations. The use of prepublica- .-with the concept that widespread dissemina-
tion review by the Government of a' tion of information from diverse sources
former employee's writing is far reach-
ing, would be extremely time consum-
ing. and could easily be misused to
stifle disfavored views.
I l3'elieve 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-
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.L'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. Shawcross,
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-SE-.ATE S'14297
unless the Government first decided that, that citizens can bounce ideas off 'of each The Supreme Court ruling contained
among other things, the information re- other to ascertain the truth."
leased "meaningfully contributes to the American-made documentary films des- broad la that could be i
e same %i etep pro-
Public development or understanding of the tined for foreign audiences have not escaped ccedure to be apple dpas well. to the tens of
subject." The effect of the new guidelines scrutiny either. Under an agreement adopt- thouands of non-C.I.A. employees who also
was to permit the Government itself to ed by a United Nations conference In 1948? have access to classified Information. The
decide what information about its conduct- film makers pay no American export or for- Government had not sought that degree of
or misconduct-was "meaningful." eign-import duties if the United States In- power in the Snepp case. Nor is it clear that
The Administration also moved into other formation Agency (U.S.I.A.) certifies that the Court Intended that result
areas of information control. Under the they are primarily intended to "instruct or Aware that in hands insensitive to First
McCarran-Walter Act, adopted over Press- Inform" rather than to propagandize.
dent Harry S. Truman's veto in 1952, for- It is the U.S.I.A. that decides on which Amendment rights the 8nepp opinion might
eigners may be denied visas to visit the side of the line-"information" or "propa. min be overextended, sued a set of gui set of gui Benjs.
United States if a consular officer or the At- Banda"-a film falls. It, in turn, relies on the They called di for the Government a torney General ''has reason to believe". the Government agency with expertise in the alled nor the before o consider
to
prospective visitor seeks "to engage in activ- area to advise it. Under this Administration, several alternative injunctions beforrushinng to
ities which would be prejudicial to the as revealed in the July-August issue of unintentional ourt to obtain nl and p nd possibly against mean canin ng-
public
public interest." Given such sweeping statu- American Film magazine, the result has tics of meaning-
-
authority, an Administration, if it been that the acclaimed 1979, ABC duct' less disclosures of information. Among the
chooses to, can give its Ideological dictates mentary about toxic waste, "The Killing format to already was n made the fly
free rein. Ground," was denied a certificate. The Envi- available already had been made widely
Invoking this act, the Reagan Administra- ronmental Protection Agency (E.P.A.) con- been eenable properly the pub classified classified in and the first pl the first pl c had whether it
tion barred a wide range of foreign speakers. eluded last year that the film was "mainly ace.
Mrs. Allende was denied entrance to the of historical interest" since the United In revoking the Civiletti guidelines, Attor-
country to speak. So were the Rev. Ian Pais- States "has made great progress in manag- ney General Smith explained that his n
partment
any and Owen Carron, spokesmen for, re- ing hazardous wastes." "The Killing to whether
the avoid
will evenhn d
spectively, the radical Protestant and Ground" had won two Emmys, first prize at to wheththe United States will evenhand-
spectively, Catholic groups In Northern Ire- the Monte Carlo Film Festival and been edly and strenuously pursue any violations
land. Julio Garcia Espinosa, Deputy Cultur- nominated for an Academy Award. But to of confidentiality obligations." However, no
al Minister of Cuba, was barred.from at- its E.P.A. reviewers, "the tone of 'The Kill- example was offered of any harm actually
tending a film festival in Los Angeles be. Ing Ground' would mislead a foreign audi- or even potentially caused by the Civiletti
cause his attendance, according to a State ence into believing that the American public guidelines.
Department spokesman, "could be prejudi- needed arousing to the dangers of hazard- The second step taken by the Administra
cial to U.S. public-interests." ? our wastes [when] this Is no longer the tion related to the classification system
Last year, the Justice and State Depart- case." itself. The system had long been criticized
ment prevented groups of foreigners from -So Intently has the Administration fo- for its absurd overinclusiveness. Between
attending a United Nations disarmament cused on the perils of disclosure of informa- 1945 and 1963 alone, more than 500 million
session. When protests were made to Ken- lion that it has sometimes failed to distin- pages of documents has been classified. By
neth L. Adelman, then deputy United Na- guish between information previously made 1973, 160 million pages of. classified World
tions delegate, about the denial of visas to public and that which has been kept secret. War II documents still?had not even'been
hundreds of Japanese who wished to attend When the unaccompanied luggage of Wil. reviewed to determine if they should be
the session, his response was: "We have ab- ham Worthy Jr., an American journalist, made public. President Richard M. Nixon
solutely no legal obligation to let Tommy and his two colleagues arrived from Tehe- once observed that even the White House
Bulgaria or anyone else from Soviet-front. ran at Boston's Logan International Airport menu was classified. - .
groups" enter the country. in December 1981, It included 11 volumes of A 1978 Executive Order signed by Presi-
Motion pictures have not escaped Admin- American Embassy documents said to have dent Jimmy Carter attempted to limit the
istration scrutiny. Since its adoption in been seized by Iranians during the takeover amount of information unnecessarily kept
1938, the Foreign Agents Registration Act of the embassy, reproduced by them and from the public. Government officials were
has required any film that is produced sold freely on the streets of Teheran. The ordered to consider the public's right to
under the auspices of a foreign country and document had been secret. By the time the know in classifying information and were
that is political propaganda to be so labeled three Americans obtained a copy, they told to use the lowest level of clearance
unless the film is "not serving predominant- could hardly have been so to any intelli. when in doubt. Clarification of information
ly a foreign interest." - gence agency in the world. was permitted only on the basis of "identifi-
In the single most expansive, and best Nevertheless, the volumes were impound- able" potential damage to national security.
known, interpretation of the statute by any ed by the F.B.I. and Customs officials at the By an Executive Order signed on April 2,
Administration, the Department of Justice airport. A year later, after the journalists 1982. President Reagan reversed each of the
last, year sought to require three films pro- had sued the Government, the two agencies critical components of the reforms adopted
duced by the National Film Board of agreed to an )out-of-court settlement of. four years earlier. Government officials
Canada to be labeled as political propagan- $16,000, were no longer required even to consider the
da. One of the films, "If You Love This - Of all the policy changes of the Reagan public's right to know when they classified
Planet," subsequently, won an Academy - Administration from that of its pred- information. -When in doubt. Government
Award. The Department of Justice later ecessors. the ones that may have the most officials were to classify. material at the
summarized the film's "political propagan- lasting impact are the decisions to classify - highest. not lowest, level of secrecy. The re-
da" message this way: "Unless we shake off more Information . and to subject Govern- quirement that potential harm to national
our indifference and work to prevent nucle- ment officials to lifetime prepublication security be "identifiable" was abandoned.
ar war, we stand a slim chance of surviving review. - - - The third step was taken.on March 11,
the 20th century." This occurred In three stages, the first 1983. That day, a Presidential directive was
Why a film with such a message was con- taking place eight months after the Inaugu- issued, requiring a wide range of additional
sidered political propaganda has yet to be ration of the new President. One-of Attor- present and former Government officials to
satisfactorily explained. Why It was concid- ney General William French Smith's first obtain clearance from the Government
ered to be serving "predominantly a foreign 'major acts in 1981 was to revoke Justice De- before publishing materal that might -be
interest" also remains unexplained. On May partment guidelines issued just a year classified. The Justice Department docu-
23. 1983. Judge Raul A. Ramirez of the before concerning the United States Su- merit dEtai}ing the directive cited the Snepp
United States District Court for the Eastern preme Court decision in Snepp v. United decision as the basis for the requirement.
District of California entered a preliminary States. In 1980, the Justices had upheld, by The new presidential order and the Aug.
injunction restraining the Justice Depart- a 6-3 Tote, a C.I.A. requirement that its em- 25 "agreement" released by the Administra-
ment from requiring registration of the ployees agree to lifetime prepublication tion that implements it establish a category
three films. review by the agency of their writings to of information described as "sensitive com-
"The court." concluded Judge Ramirez, insure that no classified material was re- partmented Information" (S.C.L)-classified
"is having great difficulty in ascertaining vealed. The Supreme Court concluded that information that is "subject to special
how any legitimate Federal interest is es- someone subject to such an agreement who access and handling. requirements."
poused or advanced by the classification of failed to submit his writings, even of unclas- Richard K. Willard, Deputy, Assistant At-
documents and/or films such as those sified information, breached the agreement.- torney General, has defended the Presiden-
before the court as propaganda. It makes no Frank Snepp 3d, a former-C.I.A. analyst of tial directive by saying that the "prepublica-
common sense whatsoever when we are North Vietnamese political affairs, was tion review program provides a reasonable
dealing in a realm where the entire purpose obliged to turn over to the Government all method of preventing disclosures by those
is the dissemination of free ideas through- of his earnings from his book "Decent Inter- employees who have had access to the most
out the citizenry of the United States, so val." sensitive kind of classified information."
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S 1 X29$ CONGRESSIONAL RECORD - S1 ATE October 20, 1982
However, according to the Justice Depart- universities, many leading universities have grath. "to give us the choice of confining
merit document explaining the directive, refused to engage in any classified research. him to the student union or contacting you
prepublication review will be required of all The problem has been with material that Is several times a day about his campus itiner-
books (fiction or nonfiction), newspaper col- not classified at all. ary. . . . Both in principle and in practice.
umns, magazine articles, letters to the Only a month after President Reagan the restrictions proposed in your letter are
editor, pamphlets and scholarly papers by took office, the president of Stanford Uni- inappropriate for an American research uni-
officials with access to S.C.I. materials, so versity, Donald Kennedy: forwarded a letter versity." The proposed restrictions. Dr. Ma-
long as what is written describes activities to Secretary of State Alexander M. Haig Jr., grath concluded, "can only have a chilling
that relate to S.C.L. classified information Secretary of Defense Casper W. Weinberger effect upon the academic enterprise...."
from intelligence reports, or "any informa- and Secretary of Commerce Malcolm Bal- Some foreign scholars have not been able
tion"-cla.asified or not-"concerning intelli- drige. Written by Dr. Kennedy and the to come to this country because of Adminis-
gence activities, sources or methods." presidents of California Institute of Tech- tration demands that limits be placed on
'Under the new policy, there is no need to no]ogy, Massachusetts Institute of Technol- their-academic work while they were here.
submit for prepublication review material ogy, Cornell University and, the University Cornell Univerisity, for example could not
consisting. "solely of personal views, opin- of-California, the letter expressed concern invite a Hungarian scientist specializing in
ions or judgments" on topics such as "pro- about Administration interpretation of two electronic circuitry to Its campus after the
posed legislation or foreign policy." But the statutes. Commerce Department stipulated that the
Catch-22 is this: If the opinion even implies The university presidents observed that scientist could only receive information in
"any statement of fact" that falls within the International Traffic in Arms Regula. classroom situations (seminars of private
the range of review, then the material must tions and the Export Administration Regu- discussions being forbidden) and that he
be clearedfby the Government before it Is lations, which had "not until now been ap- could not be given prepublication copies of
published. Since most opinions worth ex- plied to traditional university activities," research papers' Similarly, when Stanford
pressing about American defense or intelli- seemed about to be interpreted so as to in. University was advised that a Russian schol-
gence policies at least imply some pro- hibit or bar the exchange of unclassified in. ar in robotics-who had been invited to this
scribed facts, what the new requirement formation, the publication of such material, country by the National Academy of Sci-
amounts to is a massive intrusion of -the as well as its use in classroom lectures when ences--could not have general access to uni-
Government into the right of former offi- foreign students were present. verity facilities (all of which were of unclas-
cials to speak and of the public to listen. "Restricting the free flow of information sifted research), the visit was canceled.
Responding to the initial announcement among scientists and engineers," the univer-
in March, the Society of Professional Jour- sity presidents urged, would alter funda. The Government's activities have not
nalists. Sigma Delta Chi, called the directive mentally the system that produced the sci- been limited to threatening university ad-
an "ill-conceived proposal" that is "as trou- entific and technological lead that the Gov- ministrators with sanctions. A year ago, the
bling as It is sweeping. . . . Taken with pre- ernment is not trying to protect and leave Defense Department prevented the publica-
vious actions by the Administration to stem us with nothing to protect in the very near tion of about 100 unclassified scientific
the flow of Government information to the future." papers at an international symposium on
people, the cumulative effect is a major re- The Administration's response was made optical- engineering in San Diego. Only
treat from this country's commitment to more than four months later in letters from hours before the long-planned convention
open government." - James L. Buckley, Under Secretary of State was to begin, the department sent a tele-
. So breathtaking is the scope of the Presi- for Security Assistance, Science and Tech- gram warning that any presentation of
dential directive that if it had been in effect nology, and Bohdan Denysyk, Deputy As.. "strategic" information might be a violation
before this summer, many articles published sistant Secretary for Export Administration of law.
in this magazine could not have been print-' of the Department of Commerce. Both tried As reported in Science News magazine, the
ed without prior governmental clearance. to assuage the concerns of the university Government's censorship action appeared
An article last year by Gen. David C. Jones, presidents. Neither could fully succeed in "to be unprecedented in [its] timing,-in the
former chairman of the Joint Chiefs of doing so. Both letters assured the university large number of papers removed and in the
Staff under Presidents Carter and Reagan, presidents that no "new" construction of scope of the papers' content:' Defense De-
Defense
criticizing the current defense establish- law was,being imposed by the Administra- partment officials felt their actions reflect-
would have had to be cleared by.the tion, but the letters were so qualified that it ed "a greater sensitivity and a tightening tip
very establishment General Jones was de- remained unclear just what unclassified . on what can be released in an international.
nouncing. This year, two articles-one., by - technical data were deemed by the Adminis- forum, particularly one. that involves the
Earl C. Ravenal, a Defense Department offi- tration to be too sensitive to be taught. Soviets."
cial under President Johnson, urging with- Meaningful clarification has yet to be re- But to the scientific community, the Ad-
drawal of American forces around the ceived. ministration's action was indefensible. In a
world, and the other by Leslie H. Gelb, the What has been received by universities is letter to Secretary of Defense Weinberger,
national-security correspondent for The, a series of letters forwarded from the State Victor S. Stone, president of the American
New York Times who had served in the and Commerce Departments suggesting- Association of University Professors. ex-
Johnson Administration, on arnfs control- that ordinary teaching of unclassified mate- pressed "profound concern" at the Defense
criticized policy decisions made by those - rials may be considered an "export" within Department move. "To restrain the dissemi-
who would be reviewing them. - - the meaning of laws barring the exporting nation of unclassified scientific knowledge,"
- The effect of the directive is this: Those of secret technology. If so, the universities the letter said, "is to restrict academic free-
people most -knowledgeable about subjects might be subject to civil or even criminal dom. which is of fundamental importance to
of overriding national concern will be least sanctions. our entire society." - -
able to comment without the, approval of .In 1981, for example, in a letter similar to - The Department of Energy (D.O.E.) earli-
those they wish to criticize. that sent to universities around the nation, er this year weighed In with Its own propos-
Changes in law to assure that far more in- the then State Department exchanges offi- al that continued public dissemination of
formation will be kept from the public are cer, Keith Powell 2d, asked the University certain already published "unclassified but
only one aspect of the Reagan Administra- of Minnesota to restrict the academic activi- sensitive information" about nuclear facill-
tion's new era of secrecy. Another, far less ties of Qi Yulu, a Chinese exchange student, ties be prohibitied. There can be no quarrel
known, has pitted the Administration including denying him access, In the area of with its purpose-to frustrate the efforts of
against much of the country's university computer-software technology, "to -.unpub- terrorist organizations to produce nuclear
community. I lished or classified Government-funded weapons or sabotage nuclear facilities. But
From its 'first days, the Administration work." Federal law-enforcement officials the proposed rules are so vague (permitting
has been concerned that the fruits of also visited the university to emphasize the the D.O.E. to withhold almost any informa-
American technology have been flowing too need for the restrictions. - tion about nuclear facilities) and so unlikely
freely abroad. "Publication or certain infor- In a blistering response, the University of to work (once information is public it is all
mation." complained Adm. Bobby R. Inman, Minnesota's president, C. Peter Magrath, but impossible to make It "secret" again)
then deputy director of the C.I.A., "could pointed out to Mr. Powell that since the that an extraordinary diverse array of
affect the national security in a harmful university refused to accept classified Gov- groups-from state officials, universities and
way." ieputy Secretary of Defense Frank ernment research, scholars from China public-interest organizations to libraries,
C. Carlucci similarly warned that the Soviet would not have access to any such material. Indian tribes and unions-have questioned
Union Ras engaged in an "orchestrated "We have all kinds of unpublished Govern- them, either in testimony given in Washing.
effort" designed to gather the "technical in- ment-funded research all over the campus." ton this summer or in letters to the D.O.E.
formation required to enhance its military Dr. Magrath went on. "your proposal would The Oil, Chen1ical and Atomic Workers
posture." restrict him from access to all of it." International Union pointed out that the
The problem that has been vexing the Ad- - Mr. Powell has asked that the Govern- D.O.E. proposal would prevent "the public,
ministration has not been one of classified ment be informed prior to any visits of Qi workers and the families of workers from
information. To avoid governmental inter-. Yulu to any industiral or research facilities. protecting themselves against unnecessary
ference In the open-exchange of views at "I can only interpret this." wrote Dr. Ma- exposure and the effects of exposure to ion-
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October 20, 1983 CONGRESSIONAL RECORD - SENATE
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 frorp 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 Mr.
Fo 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. - 1
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 pn 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 far, so
fast? Why has it adopted new Government-
wide policies limiting the dissemination of
information without any showing that harm
had been caused by policies previously in
.effect? -
One answer may be easily rejected. It is
not because 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
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-
S 1.1299
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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 -I n~ YtCLJ1L11r 17 Vi i'IVt,Se. 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 -
l ne assisLaib iegi,iawvc
ceeded to call the roll. . their travel around the world, whether it is unduly restrictive. It deals with
Mr. PERCY. Mr. President, I ask It is on official business or nonofficial making sure that someone either
unanimous consent that the order for business, or whatever, every time they works for or travels for the endow- -
the quorum call be rescinded. run for reelection, because somebody ment or some other taxpayer financed
S14300
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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.
h
e
The PRESIDING OFFICER. T
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. SYMMS. 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-
mentyet? -
The PRESIDING OFFICER. They
are not.
Mr. SYMMS. Mr. President. I ask
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 vote on that amendment.
The PRESIDING OFFICER. The
question is on the amendment. ? -
Mr. DENTON. Mr. President, I
i
object. 1, in good faith, yieldeu w
th Mr. DOLE. Mr. President, I- do not
the understanding that the amend-
know of any abjection. to this amend
ment was being set aside, which had merit. This is not one of the major
been articulated by the floor manag- amendments. It is just to try to make
ers. certain that we do not have different
andMa. President,
Mr.
the ent, I Mathias members of staff who are on the staff
for the yeas an nays o on the of different commissions who can
amendment, travel on that commission, then travel
The PRESIDING OFFICER, Does at USLA expense, and then travel on
the Senator from Alabama yield foor this new endowment program. It is
that purpose? Yes. just an effort to limit the staff travel
Mr. The DENTON. PRESIDING NG OFFICER. Is and to make the staff member decide
The `. -
there a sufficient second? There is a who heworksfor.
There Is probably much worthwhile
sufficient second.
The yeas and nays were ordered. travel that staff members and elected
.
The PRESIDING OFFICER. Is Members make overseas. I am not
there further debate? criticizing that. I am not one who likes
Mr. MOYNIHAN. Mr. President, I to travel that much. I think a lot of
suggest the absence of a quorum good comes from travel, and certainly
The PRESIDING OFFICER. The staff members are as responsible, in
The PRESIDING OFFICER. With- is going to raise the question that
out objection, it is so ordered. - there is a lot of travel going on that is
Mr. PERCY. Mr. President. in order not necessary.
to accommodate a number of our col- The same is not true of staff. Let us
leagues that did not know there was a face it, there are some staff who make
rollcall vote coming up at this time, I a career-out of traveling around the
ask unanimous consent to temporarily world as often as they can at taxpay- -
set aside the Mathias amendment and ers expense. I think the record would
vote on the Mathias amendment and show that some break a record every
take up one or more amendments to year. They travel to so many countries
be offered by the distinguished Sena- this year and so many countries the
tor from Kansan - next year. - ,
The PRESIDING OFFICER. Is What I am fearful of is we are going
there objection? Without objection, it to have some of these professional
is so ordered. travelers who have. just found another
Mr. DOLE. Mr. President, the Sena- way now to travel at taxpayer's ex-
tor from Kansas has at least -maybe penses under this new Endowment for
two or three amendments. I am not Democracy. That will be one more
certain in which order they will be of- travel agency they can go and pick up
fered. because it gets into this new En- a ticket and travel to some country
dowment for Democracy program, this they have not been to yet. We want
newest travel agency that we are set- them to see all the countries, but some
ting up where the Government pays have been to various countries seven
all the travel expenses and gets no re- or eight times with no real purpose.
sults from the endowment ifself. It would seem tome that all this
AME DMasr NO. 2179 amendment does is simply says staff
(Purpose: To deny compensation and travel will not be reimbursed for their en-
expenses to any member of the Board who dowment travel by the endowment if
is an officer or employee of the United they are otherwise employed by the
States) - - Government. As I have. indicated.
Mr. DOLE. Mr. President, I will first elected Members are not included in
send to the desk the amendment that this amendment because.l hope that
would try to limit travel. I do not whatever travel we make from time to
know of any objectiop to this amend- time-and some Members are required
ment. to do more than others, certainly
. The PRESIDING OFFICER. The members of the Senate Foreign Rela-
clerk will report. - - tions Committee have greater respon-
The assistant legislative clerk read; sibilities worldwide than other Mem-
as follows ' bers, but that travel and the expense
The Senator from Kansas (Mr. DOLE) pro- involved have to be justified from time
poses an amendment numbered 2379 to to time at election time. -
amendment No. 2344. I hope that this amendment might
On page 5 the f folllowin lowin , g: between lines 7 and B. insert be adopted. It might have some intact
- -
(d)(1) Notwithstanding subsection (c). no on those who might seek to use this .
member of the. Board, officer or staff new agency, if in fact it is created-it
member of the Endowment, other than an will be of highly doubtful value if it
elected member of Congress, shall be enti- is-but if it is created, that at least we
tled to receive compensation or shall be al- are going to-have just another ticket
lowed travel expenses for travel made in window for somebody who wants to
connection with the Endownment while - start seeing the world at taxpayers' ex-
such person is serving as on officer or em-
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October 20, 1983 ;ONGRESSIONAL RECORD - SET FE
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 endowment 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 busines..k.
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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t-ONGRESSIONAL RECORD - SENATE October 20, 1.983
Mr. FELL. Mr. President, I wonder if Mr. MATHIAS. Mr. President. I House. Even though Senators serve on
the Senator from Kansas might accept move to reconsider the vote by which that committee-Republican Senators,
another suggestion. - the amendment was agreed to. Democratic Senators. Republican
Mr. DOLE. Certainly, Mr. President. Mr. LEAHY. I move to lay that House Members, Democratic House
Mr. PELL. That is to take his motion on the table. Members-the chairmanship never ro-
amendment and add a phrase, say at The motion to lay on the table was tates. It is one of these unusual things
the end of it, a phrase saying, unless agreed to. that happened in the Congress for rea-
so authorized by the President pro The PRESIDING OFFICER. There sons unknown to this Senator.
tcmpore of the Senate or the Speaker w=s a unanimous-consent agreement This an;eniment simply provides
of the House. Or by poth. pursuant to which the Mathias that the chairmanship rotate at the
Mr. DOLE. That might improve it, amendment was laid aside to take up start of each calendar year between a
but again. I cannot speak for the several amendments sponsored by the Member appointed by the Speaker of
House. It is not too difficult to get Senator from Kansas. the House and a Member appointed by
travel approved. Are there additional amendments by the majority leader in the Senate.
Mr. PELL. I think that would pro- the Senator from Kansas? Whether it is a Democratic majority
vide for the insurance I am talking AMENDMENT NO. 2380 or a Republican majority, it gets it
about and make it absolutely accept- (Purpose: To provide further for designa. back into the spirit of rotation. I think
able to me. That would be assuming tion of the Chairman of the Commission a little background is in order.
an officer or employee of the United on Security and Cooperation in Europe) At a -hearing on July 27, 1976. deal-
States unless he is so authorized by Mr. DOLE. Mr. President, I send an- ing with the original establishment of
the President pro tempore of the other amendment to the desk and ask the Commission, the late Senator"ase
Senate or the Speaker of the House. for its Immediate consideration. - of New Jersey. Congresswoman Fen-
Mr. DOLE Let me suggest-the ab- The PRESIDING OFFICER. The wick, and Representative FASCaa., all
sence of a quorum and see if we can amendment will be stated. whom were instrumental in the cre-
` work out any difference we have with- The legislative clerk read as follows: ation of the Commission, discussed
.out gutting the amendment. The Senator from Kansas (Mr. Do2_.) pro- their understanding as to how the
Not too many people get to travel poses an amendment numbered 2380. _ chairmanship would be handled, and
around the world and when they do, Mr.. DOLE. Mr., President, I ask the following exchange occurred. -
.
they have to pay for it themselves. unanimous consent that further read- Representative FASClai_ One of the things
They do not particularly like to pay jng of the amendment be dispensed that came up immediately was maybe an
for our travel, and we are elected. with. oversight, but probably not. I think it was
Members of the Senator's committee The PRESIDING OFFICER- With- probably a psychological kind of an effort
have an obligation to travel and they, out objection, it is so ordered. on the question of rotation of chairman-
are criticized for it from time to time. Theamendment is as follows: ships. The legislation provides for a House
So are the rest of us. We ought to At the bottom of page 48. add the follow- Member to be chairman.
make certain that we are not just cre- ing: - : When that question was raised I said I
ating another big travel bureau here, TITLE VII-GENERAL PROVISIONS have absolutely no objection to a Senator. I
for a ticket to anywhere. I am certain love Senators, and some bf my best friends
DESIGNATION OF CHAIRMAN OF THE COMMIS are Senators
that is what might happen. SION ON SECURITY AND COOPERATION IN Senator Case is here. We have jest really
Let me suggest the absence of a Euaopa started. Senator, at this point
quorum. Svc. 701. Section 3 of the Act entitled "An I assume that means that Senator
The PRESIDING OFFICER. The Act to establish a Commission on Security Case had just walked me into the room.
clerk will call the roll. and Cooperation In Europe", approved June
The assistant legislative clerk pro- 3, 1976 (90 Stat. 661). Is amended- Senator CASE. I made the mistake of stop-
ceeded to call the roll. (1) by inserting "(a)" after "Sec. 3:': ping in the office an the way over here.
Mr. MATHIAS. Mr. President, I ask (2) by striking out the second sentence of Chairman FASCELL. I discussed the prob-
unanimous consent that the order for paragraph (1); and lem with Senator Pret, and some o; you in-
. (3) by adding at the end thereof the fol- formally, and certainly we ought to have ro-
the quorum call be rescinded. lowing: - tating chairmanships on this matter be-
The PRESIDING OFFICER (Mr. ?'(b) Beginning with the start of the first tween the House and the Senate. I think
GoaroN). Without objection, it is so calendar year after the date of enactment of that for the moment that certainly Senator
ordered - the Department of State Authorization Act, Plat. ought to be designated as cochairman.
Mr. MATHIAS. Mr. -President. the Fiscal Years 1984 and 1985. the Speaker of .and that is what the legislation calls for.
managers of the bill have looked at A he House of Representatives shall desig- with Senator FELL as cochairman, and we
the amendment of the Senator from nate one of the members of the Commission can rotate it the next time around, and the
on Security and Cooperation in Europe ap- Senator will be the chairman. and the
Kansas and we think that it has some pointed from the House of Representatives House Member 8111 be a cochairman.
merit to serve as chairman during each odd-
I think it will, in all fairness, be the We could get around, Senator. if this
number calendar year and the President of agreeable to the group. to making the neres-
subject of controversy in the confer- the Senate. on the recommendation of the sary changes in the legislation at an appro-
ence with the House. but that is some-. Majority Leader, shall designate one of the priate time.
thing that we cannot control. The members of the Commission appointed from My own feeling is we ought not to rush it-,
Senator from Kansas is an expert- the Senate to serve as chairman during each
enced legislator, and he knows what even-numbered calendar years. Well, I must say we have not rushed
the difficulties are when there is a Mr. DOLE. Mr. President, I think into it. It has been almost 8 years now.
contest in a committee of conference. some Senators are aware of what this He said: -
But subject to that reservation, I amendment does. All we are seeking to We have an understanding, and -If the
think the managers of the bill are pre- do in this amendment is return the so- Commission agrees we can proceed that way
pared to have a vote at this time. called Helsinki Commission, the and designate Senator PEU. as cochairman
The PRESIDING OFFICER.. Is CSCE, to the nonpartisan committee from this moment on.
there further debate? If not, the ques- it was intended to be. There always Senator Clark is now here.
and
tion is on agreeing to the amendment. has been great bipartisan interest in We will find an appropriate vehicle.In the
The amendment (No. 2379) was the Helsinki Accords, and it is clear to we will make the necessary change law
agreed to. -- me that the original Helsinki Commis- Does that seem agreeable with members
Mr. PELF Mr. President, I would sioners had In mind a chairmanship of the Commission?
like the record to show that I voted in arrangement that would reflect that Representative FE..' wicx. It is perfect.
the negative. bipartisanship. But this arrangement Chairman FAsceu.. We will proceed on
The PRESIDING OFFICER. The - never came into being, and what we that basis, and the record will teflect as of
record will so indicate. Is there a have today Is a permanent chairman this moment that Senator PEI.I. is the co-
motion to reconsider? - - ? appointed by the Speaker of the chairman.
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S 14304 CONGRESSIONAL RECORD - SENATE October 20, 1983
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 1978.
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. PELT. 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 1978. 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 PRIESIM-N-G 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. HAwKINs), -the Senator
from Alaska (Mr. MURKowsml). and
the Senator from Alaska (Mr. Sra-
vENS) are necessarily absent.
Mr. BYRD. I announce that the
Senator from California (Mr. CRAM-
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. .. .
The PRESIDING OFFICER. Are
there any Senators in the Chamber
desiring to vote?
The result was announced-yeas 56,
nays 34, as follows:
[Rollcall Vote No. 306 Leg.l
YEAS-56
Andrews
F.agleton
Mitchell
Baucus
Ford .
Moynihan
Bentsen
Olenn
- Nunn
Biden
Gorton
Packwood
Bingarnan
Hart
Pell
Boren
Hatfield
Percy
Boschwltz
Heinz
Proxmire
Bradley -
Huddleston
Pryor
Bumpers
Inouye
Quayle
Burdick
Kassebaum
Randolph
Byrd
Kennedy
Riegle
Chafee
Lautenberg
Rudman
Chiles
Leahy
Sarbanes
Cochran
Levin
Sasser
Cohen
Lugar
Specter
Danforth
Mathias
Stafford
DeConcini
Matsunaga
Tsongas
Dixon
Melcher
Weicker
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
Grasaley
Nickles
Zorinsky
Hatch
Pressler
Hecht
Roth
,NOT VOTING-10
Cranston
Goldwater
Murkowskl
Dodd
Hawkins
Stevens
Durenberger
Johnston
Evans
Long
So the Mathias-Eagleton amend-
ment (No. 2378) was agreed to.
Mr MATHIAS. Mr. President, I
.meve 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 rollcall 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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October 20, 1931 CONGRESSIONAL RECORD - SENATE
Now, I have not practiced law for a
long time, and did not practice much
when I did, but It seems that we have
a fairly clear-cut case here. You have
an admission by the man who has
been the chairman since 1976 that we
ought to rotate it. And there was an
agreement. We have his quote saying
this is a deal, this is perfect.
But 7 years have passed and the
chairmanship has not been rotated-
In fact, Chairman FASCELL has quite
a tight rein on the Conunission. After
he fired the deputy staff director,
whom I selected, he directed his staff
to inform me that I, the cochairman
of the Commission, would not be al-
lowed to submit another staff recom-
mendation.
Now, I do not think it is a personal
conflict between me-and Congressman
FASCELL- I think it is a staff problem-
They do crop up around here from
time to time.
Thb Senator from Kansas feels that
the staffing incident alone may under-
score the way in which the Chairman
of the Commission and staff have
viewed the various cochairmen. No
Commission of this type should have
anybody's permanent stamp on it, and
this amendment would simply correct
the situation. .
Over the years, Congress has created
some 31 bipartisan Commissions of
this type, ranging from. the Board of
Directors of Gallaudet College, to the
Migratory Bird Conservation Commis-
sion to the U.S. Holocaust Memorial
Council. Of all these Commissions,
only the Commission on Security and
Cooperation in Europe-the Helsinki
Commission-has a Member of the
House of Representatives as its perma-
nent Chairman. A rotating chairman
would not only be what the original
commissioners had in mind, it would
also eliminate what my research re=
veals to be a clearly unique situation
in the history of bipartisan Commis-
sions
created by Congress-
The work the Helsinki Commission
staff concerns matters of 'great impor-
tance to our Government and to the
many American citizens who them-
selves monitor the-East bloc's degree
of compliance with the accords- Issues
of travel, family reunification, and
suppression of human rights are -cen-
tral of ? the Commissions casework.
They are in a fundamental sense
beyond politics And that is the way
that the Commission itself should be
structured.
I must say-and I say it with all re-
spect to my distinguished colleague
from Rhode Island,' who has done
great work on the Commission. who is
a loyal member of the Commission-
that I have no ,quarrel with anybody
in the Senate. But I believe that this is
a matter the Senate should address It
is not a partisan matter. It is a matter
of whether or not we are going to.
create a commission, whether we are
going to let somebody in the House be
the permanent chairman of the Com-
mission, even though -it be the only
one of its kind among the 31 biparti-
san commissions created, and even
though there was an agreement on
July 27, 1976, that the chairmen would
rotate. -
I understand that Representative
FASCELL has done a good Job. He is an
outstanding Member of Congress. he is
a friend of mine.
However, like so many commissions
where you do not have a day-to-day
contact, sometimes the staff runs the
Commission. Sometimes they run the
Senate. You have to keep an eye on
what is going on. That is what is hap-
pening with this Commission.
It seems to me that it is a natter of
comity. between the House and the
Senate.
Who knows what will happen next
year? I know what will happen next
year, but nobody knows what will
happen in 1985, 1986. or 1987. So this
is not an effort for some Republican to
become a chairman.
I suggest that this is a 'matter of
some importance. It may not be impor-
tant to anyone who is not on the Com-
mission. It may not be of great impor-
tance to anyone who is on the Com-
mission. and maybe the entire CSCE
should be abolished.
It seems to me that if we cannot
agree-and I would think every Sena-
tor would agree-that if we cannot
rotate the chairmanship on the CSCE.
then, as an alternative, perhaps we
ought to make the chairman of the
National Endowment for Democracy a
Member of the Senate. selected by the
majority leader, whether it be a Demo-
crat or a Republican. We cannot have
it both ways. You cannot argue that
you cannot rotate the chairmanship of
the CSCE and then argue that you
can rotate the chairmanship of the
National Endowment for Democracy.
-.I hope we can accept this amend-
ment In my view, we might be able to
work it out.
I have no quarrel with Representa-
tive FAsczu.. I do not believe he" has
any quarrel with me. But I think we
would have a lot more Senate partici-
pation on the so-called Helsinki Com-
mission if we had rotating chairman-
ships and if we had more input at the
staff level.
So I hope we can accept this amend-
ment. -
Mr. PELL. Mr. President, as the Sen-
ator from Kansas knows, I have great
regard and admiration for him and his
ability to shed light on debate and dis-
cussions.
I understand completely the point
he is making. But I would be remiss if
I did not express that I have a person-
al interest in this issue since I was the
first Cochairman of, the Commission
and an initial member. The Senator
from Kansas Is correct: The under-
standing was that we would rotate the
S 11303
gressman FASCE1-1. is doing an excellent
Job as Chairman and he certainly is
dedicated to the Commission and Its
work. Over the years I have noted that
attendance by Commission members
from the Senate. myself included, has
often been poor. Whether this was due
to a lack of time or of interest, I am
not sure. But from the viewpoint of
the national interest and of the Com-
mission, it seemed best to leave the
Chairmanship in the House.
My colleagues know that I do not
like to engage in partisan battles or
squabbles about turf. I have felt, and I
continue to feel.. that Congressman
FASCr LL has run the Commission well.
He has acquired a good deal of expert
knowledge in the last 7 years. He is an
enthusiastic and effective Chairman
and I believe that he should continue
to serve in that position.
Also, frequent rotation of the Chair-
manship creates the possibility of the
staff running the Commission rather
than the Chairman.
'Finally, in view of the tremendous
amout of work all of us have as Sena-
tors. I question if any of us has the
time to devote to the Chairmanship of
the Commission.
For all these reasons. I believe the
present arrangement should be left as
It is. When the time comes that Con-
gressman FASCELL loses his vigor or his
interest, than we can and should re-
consider this issue.
Mr. DOLE. Mr. President, that begs
the question. There would be more
than input if there were rotation, if
Senators thought they had some influ-
ence on the Commission. We have a
lot to do, but we do not take our duties
lightly.' The Senator from Rhode
Island does not; the Senator from
Kansas does not.,
I do not assume that we are busier
than Representative FASCELL. Just be-
cause he likes to be Chairman and
somebody says he does a good job,
then why should that not apply to all
the other chairmen? Is the Senator
from Rhode Island willing to make the
Chairman of this new travel bureau,
the National Endowment for Democ-
racy, permanent, appointed by the ma-
jority leader, after consultation with
the President? Why should we rotate
that one?
Mr. PELL. If you find a good chair-
man, there would not be any reason
for changing. We are about to adopt
an amendment which I do not support
saying that we should rotate. the
Chairmanship of the Helsinki Com-
mission. I would certainly go along
with the Senator's suggestion that we
not rotate the Chairmanship of the
Endowment.
Mr. DOLE. It seems to me that we
have created 31 commissions and only
one has a permanent House Chair-
next time around, but no decision was man. It is time to correct that.
made as to exactly when this would ? ' I do not want the record to reflect
happen. for one moment that I am critical of
- Frankly, the Commission Is func- Representative FASCELL. But we are all,
tioning very well. I think that Con- 'Senators here, and I think we are
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SECRET
ROUTING AND RECORD SHEET
SUBJECT: (Optional)
Polygraph--Its Future in the Federal Government
Director of Security
4E-.60 Headquarters
TO: (Officer designation, room number, and
building)
DDA
7D-24 Headquarters
2.
Chairman, SECOM
7B-31 Headquarters
3.C/ALD/OGC
7C-40 Headquarters
4 DD/OLL
7D-43 Headquarters
5.
Executive Registry
7E-12 Headquarters
Executive Director
8.
DCI
OFFICER'S
INITIALS
13 OCT,1983
25X1
25X1
COMMENTS (Number each comment to show from whom
to whom. Draw a line across column after each comrmnt.)
Attached, for the signature of
the DCI, is a proposed letter to
Judge Clark on the subject of poly-
graph--its future in the Federal
Government.
The paper draws attention to:
polygraph's importance to the CIA
and NSA security programs ; the
logic of expanding its use to the
SCI world generally; and finally,
the significance of polygraph to
NSDD-84.
Recommend DCI signature.
/s/
OS 3 2512
25X1
25
FORM 61 O USE PREVIOUS
1-79 EDITIONS
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 F ~?may!?~MYry+rn+s..rr.....
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Central Intelligence Agency 83-! ? J
r.,
17 OCT 1983
Honorable William P. Clark
Assistant to the President
for National Security Affairs
National Security Council
The .White House
Washington, D.C. 20500
I am deeply troubled by the recent Congressional attention
which has focused upon the use of the polygraph by the United
States Government. Congressional interest in the "Carlucci
Initiative," which expands the use of the polygraph within the
Department of Defense, has become intertwined with
Congressional concern about the use of the polygraph in
unauthorized disclosure investigations as provided in NSDD-84.
The result is that the. Congress is now taking a close,
skeptical look at the Government's use of the polygraph across
the board and, unless we are careful, not only will additional
use of this valuable security tool be rendered impossible, but,
the effectiveness of existing personnel security programs which
utilize the polygraph may be jeopardized.
To help ensure that such an eventuality does not come to
pass, it is my judgment that an Administration policy statement
on the use of the polygraph by the Government should be
developed. This will meet the concerns of many critics that
the Government uses the polygraph on a haphazard, arbitrary,
and capricious basis, pursuant to no reasoned policy or
program. Such a polygraph policy should authorize use of the
polygraph for three separate and distinct security purposes.
In order of their importance to the national security, these
purposes would be:
a. The use of the polygraph in the
personnel security programs of CIA and NSA as an
adjunct to security processing;
b. The use of the polygraph as a screening
device for persons in the Executive Branch who
are being processed for initial or continued
access to Sensitive Compartmented Information
(SCI); and
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c. The use of the polygraph in other
appropriate contexts, such as in investigations
of unauthorized disclosures of classified infor-
mation.
With respect to the first category of polygraph use, the
CIA and NSA polygraph programs have been in place for decades.
They are essential components of the personnel security
programs of both agencies and they are conducted by highly
trained professionals. There has been no hint of abuse or any
misuse of the polygraph by either CIA or NSA. Unlike the
employees of other Government agencies, CIA and NSA employees
come into contact with the most sensitive intelligence infor-
mation on a daily basis. Only the most rigorous security
standards can ensure the protection, of such information. I'm
sure you agree that CIA and NSA simply cannot afford to lose
the added degree of protection provided by the carefully
focused use of the polygraph in their personnel security
programs.
The second category of polygraph use would represent a
moderate, but significant expansion of polygraph use within the
Government. I continue to believe that the security of
intelligence sources and methods cannot be protected only at
the producer end of the intelligence chain. The consumers of
intelligence should be required to meet the most stringent
security standards appropriate to their level of informational
access. Those who are given access to the most sensitive
intelligence information, SCI, ought to be subject to the most
stringent security processing possible, which should include
use of the polygraph as a screening device. Polygraph
examinations conducted for this purpose would be limited to
issues directly related to counterintelligence. This proposed
use of the polygraph would serve two important security
purposes. First, it would help identify any persons who have
relationships with foreign intelligence services. Second, it
would have a deterrent effect on persons granted SCI access and
would ensure a-greater sensitivity and care in the handling and
safeguarding of such intelligence information.
The third category of polygraph use would provide authority
to employ the polygraph in circumstances related to the protec-
tion of classified information, or in law.enforcement matters,
where such use would be desirable, as well as appropriate, but
where case-by-case approval would be required. This category
would include the use of the polygraph in investigating
unauthorized disclosures of classified information. Although
the establishment of this category of polygraph use would not
represent a significant increase in polygraph use, numerically
rrr--9c u
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speaking, this category is the most far-reaching in concept and
is almost certain to generate the most controversy. Powever,
some concerns of those critical to this approach could be
alleviated by the clear understanding that unauthorized disclo-
sure polygraph examinations would not be given in a blunderbuss
way, but only when other investigations have narrowed the
suspects to a manageable few. In addition, I would suggest
that the Attorney General promulgate guidelines governing use
of polygraph in appropriate law enforcement contexts.
If the Administration's polygraph statement is constructed
along the lines I have outlined above, we will have gone a long
way towards establishing a narrow, carefully tailored polygraph
program for the Government which meets the needs of the Govern-
ment to protect the most sensitive classified information, but
in a reasonable and restrained fashion. However, I cannot
emphasize enough the necessity of preserving the polygraph
component of the personnel security prograu's of CIA and NSA,
whether any expansion of polygraph use occurs or not. While it
would be desirable to increase the use of the polygraph in the
ways set forth above, we should take great care to ensure that
use of the polygraph by CIA and NSA is neither restricted nor
impaired as we proceed'with this undertaking.
One final point should be noted. DOD representatives are
scheduled to testify before the brooks Committee on 19 October
regarding DOD's plans for expanding the use of the polygraph.
I understand that the Secretary of Defense has not decided
whether he will continue to advocate expanded use of the poly-
graph or agree to abandon the "Carlucci Initiative." Since the
support of DOD is essential if the use of the polygraph is to
be expanded, it would be advisable for you to review this
matter with the Secretary of Defense.
I look forward to hearing from you further regarding my
proposal.
AZ Q111
William J. Casey
Director of Central Intelligence
nrnnrl'
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 Approved For Release 2008/10/30: CIA-RDP86B00338R000300360017-4
SECRET
SUBJECT: Letter to the Honorable William P. Clark
Assistant to the President for National Security Affairs
Re Polygraph--Its Future in the Federal Government
Addressee
DCI
DDCI
ExDir
ER
DDA
C/SECOM
C/ALD/OGC
DD/OLL
D/Sec
irec or, uttice--Dt agis a lve Liaison Da e
c4
17 OCT 1983
Deputy-.-Director ector of Central Intelligence
14 OCT 1983
14 OCT 1983
-t/,a
4
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