ASSUME YOU ARE the mastermind of a conservative administration in a faraway democratic country. Assume also that you know of a number of scandals brewing in your defense purchasing establishments as well as a potentially quite nasty scandal in your National Security Council involving illegal payments to mercenary soldiers. Your highest military officers, subverting a law passed by the legislature, have just taken power away from the civilian officers who are their legal supervisors. As you see it, your problem is to keep the country from getting upset about these unsavory affairs.
The trouble is, a number of individual employees in your own executive branch think such things are wrong. And they feel conscience-bound to bring the wrongdoing to the attention of the legislative body. That will surely cause a furor that will damage both you and your political party. What do you do to protect your interests?
Perhaps you find the answer in new and much tighter secrecy restrictions on government employees, restrictions even more severe in some respects than any your country has applied in time of war. The best way to stop the leaks, you decide, is to throttle the leakers by making everybody sign the toughest new secrecy oath your legal people can devise.
But you have to deal with troublesome private organizations that spring to the defense of individual rights under the constitution. One of the chief of these is a lawyers' union dedicated to defending unpopular causes and attacking restrictions of civil liberties. And suddenly you have the key. If you can neutralize that lawyers' union by some kind of pressure, you will have disarmed a large and influential part of the liberal Establishment. With your new regulations, you can then hunt down and get rid of dissenters without fear of a public attack.
Of course, as Sinclair Lewis phrased it in the title of one of his novels, It Can't Happen Here. But those who look for comparisons and analogies in everything might imagine some parallels between this fable and the situation in Washington in the fall of 1986.
On October 15 of that year, Chairman John Dingell of the House Energy and Commerce Committee sat down and wrote a long letter to President Reagan. He told the president that he'd been having trouble with his correspondence; most of the officials he had written to either refused to answer or would not answer frankly. It had crossed Chairman Dingell's mind that they could be hiding something.
Secretary Weinberger, for instance. He hadn't answered Dingell's request for a copy of National Security Decision Directive 219 (containing the Poindexter-Packard plan), but his deputy had replied, "Under policies governing the release of classified documents, requests for release should be directed to the originator of the document."
The originator, of course, was Vice Admiral John Poindexter, the national security adviser. The admiral, being busy with various secret arms shipments to the east and south, did not answer his mail. Rodney B. McDaniel of the NSC did, however, write to tell the chairman that it was "not the policy of the National Security Council to provide a copy of classified NSDD's to anyone other than the addressees." He enclosed an unclassified fact sheet on the Packard commission's recommendations for the chairman's edification.
Dingell, of course, was simply testing; he had read NSDD 219 and knew perfectly well what was in it, as he proceeded to tell the president:
Although we do not have a copy of the Directive we requested, we have had an opportunity to examine it. We know that two documents are involved. One is a letter from Admiral Poindexter to Secretary Weinberger and the other is the Directive itself. The Poindexter letter consists of three paragraphs. One of the paragraphs, which is classified SECRET, indicates that the attached Directive is "intended to strengthen your hand vis-a-vis legislation on the Hill." The third paragraph in the document, which is classified CONFIDENTIAL, indicates the "Packard Commission got favorable reviews and this gives the President leverage in dealing with reforms on the Hill." In effect, the SECRET and CONFIDENTIAL classifications were used to conceal an agenda intended to avoid more sweeping Congressional reforms of the Defense procurement system.
Attached to Admiral Poindexter's letter is the Directive itself. Within the Directive, there is a paragraph, classified SECRET, which would effectively negate the current Packard Commission recommendations relating to accountability of defense contractors. That paragraph indicates an intention that it apply only to situations where the contractor lacks "present responsibility." It would not rely on former or ongoing contracts which are already awarded in making decisions relating to suspensions and debarments.
Dingell pointed out to the president that his assistants were violating Reagan's Executive Order 12356 by classifying documents not for national security reasons but in order to withhold information from Congress. The chairman closed by requesting criminal or administrative proceedings against the suspects and renewing his request for the Poindexter-Packard documents.
The president did not reply. He, too, was a poor correspondent.
In the meantime, Reagan's security people were stiffening controls by reviving NSDD 84, "Safeguarding National Security Information," which had been issued in early 1983. This directive gave lip service to the declassification of information "that no longer requires protection in the interest of national security," but it also contained a long list of measures to repress the free flow of information. The three most salient were: greatly increased and wider use of the polygraph, or lie detector, much wider prepublication review of any writing by anyone who ever held a compartmented security clearance, and a new secrecy oath, or "nondisclosure agreement," for people with security clearances.
To impose and monitor the complicated new secrecy oath, the directive gave responsibility to an already existing organization called ISOO -- Information and Security Oversight Office. ISOO, for budgetary and housekeeping purposes, is a part of the General Services Administration, which is also responsible for the National Archives. Thus it was that Steven Garfinkel, who as general counsel for the Archives had stonewalled our subpoenas in the Carter administration, was now head of ISOO.
Garfinkel told me he got his "policy direction" from the NSC but reported directly to Reagan. He said that the NSC staffers who were drawing up the secrecy oaths were Deputy Director Robert McFarlane, Commander Paul Thompson (the attorney who later distinguished himself by finding nothing wrong in the Iran-Contra scam), Brenda Reger (a security expert whose later claim to fame was omitting to seal Oliver North's office to stop him from shredding his records), Major Robert Kimmit, and Kenneth DeGraffenreid.
When Congress had held hearings on NSDD 84, beginning in September 1983, the administration had downplayed its harsh new stipulations. Speaking for the Pentagon, retired Army General Richard G. Stilwell dismissed any immediate concerns about the new gag order (Standard Form 189, or SF 189) by saying: "This requirement will be implemented prospectively -- we will not ask current employees to sign them, unless they are processed in the future for a new level of clearance." This displayed a shrewd insight into the congressional mind: as long as current employees are exempt from the particular outrage, no one will care what happens in the future.
The administration did have problems with the polygraph provision, though. In the House Government Operations Committee hearings on October 19, 1983, Chairman Jack Brooks demolished the NSC's position by producing some damning evidence from the Pentagon itself. It seems that back on December 16, 1982, Dr. John F. Beary, III, then DoD acting assistant secretary for health affairs, had written Secretary Weinberger a memo on the subject of polygraphs:
1. No machine can detect a lie. The machine can only detect stress; however, the stress may result from several emotional causes other than guilt: such as fear, surprise, or anger.
2. Even setting aside the argument that the argument is flawed, there are accuracy problems. We have only been able to locate two scientifically acceptable studies so far.... In one, the polygraph accuracy is 62%. In the other ... 72%. (You get 50% by tossing a coin.) The several studies in the scientific literature that report accuracy rates of 95% to 99% are flawed by inadequate experimental design and sometimes by conflict of interest (people doing the study who make their living from the polygraph).
3. The polygraph misclassifies innocent people as liars. In one study, 49% of truthful subjects were scored as deceptive. In another study, 55% of the innocent were misclassified.
Dr. Beary was supported by Henry E. Catto, Jr., the assistant secretary of defense for public affairs, in a memo to Weinberger the following day:
Cap, I believe we are headed for real trouble if the proposed changes in the polygraph regulation are published, and I know we are headed for trouble if they are approved....
... it is totally disingenuous to try to portray these changes as "updating of regulations" as a search for subversives, or as an attempt to speed clearances. These may all be true, but the fact is that we are trying to stem leaks which hurt the country (which is nothing to be ashamed of) and the press knows it.
Catto wrote, "The polygraph has a whiff of the jack-boot about it," and summarized his plea to Weinberger:
In short, I urge you to end this whole thing at once. As Dr. Beary reported in your December 16 staff meeting, the reliability of polygraphs is in question. They will scare our people. They will infuriate the press. They will hurt Cap Weinberger and, in the process, the President. Let's forget it.
By the time Dr. Beary testified before the Brooks committee, he had found work with a more honest employer at Georgetown University's School of Medicine. He reiterated his views, saying that people who ask, "How accurate is the polygraph?" are asking the wrong question; they should be asking, "Does it work at all?" He added that a stopped clock shows the right time twice a day. At those two instants, it is 100 percent accurate, even though it does not work at all. He then made this parallel:
I have brought with me a polygraph machine today. I would like to show it to you. It has some advantages compared to the one up here on the witness table. It is inexpensive. It is very portable. It has very low maintenance costs. It has about the same range of reliability as the polygraph.
It is a simple coin. It will be right 50% of the time in a dichotomous situation, that is, lie or nonlie.
So much for the polygraph.
The proposed censorship of writing for publication got an equally hard going-over by the committee. Publishers, publishing trade associations, journalists, associations, government unions, and the legal profession all sent impressive witnesses to condemn it. The press joined in. An excellent editorial in the New York Times summed up newspaper opinion:
The secrecy madness will not shut down rumor mills or plug leaks, especially those at the highest levels. But it will deprive Americans of much information that ought to circulate freely between the public and its servants. It will especially chill discussion of national security issues.
The outcome of the hearings was that Chairman Brooks introduced a good, though seriously flawed, bill, the Federal Polygraph Limitation and Anti-Censorship Act of 1984 (HR 4681). It tamed polygraphs and censorship, but it failed to deal with the gag agreements in NSDD 84. It also exempted the CIA and the National Security Agency (NSA), the two most secretive government agencies, from meaningful restrictions. (Testifying before the House Subcommittee on Civil Service, Brooks said of the spook agencies, "We are going to exempt them. They can use thumb screws, water torture, whatever they want to do to prove their people are honest, clean, pristine Americans.") Brooks's bill went nowhere. In a compromise negotiated between the NSC apparatchiks and the congressional staffs, McFarlane gave assurances that NSDD 84 would be suspended indefinitely but it would not be rescinded.
Indeed, the new secrecy oath provision lay dormant for about two years. Then, in mid- 1986, the pressures to put it into effect began quietly. Noted whistle blower Chuck Spinney was given a form to sign by his bosses in the office of the secretary of defense. If he didn't sign, he would lose his security clearance and, consequently, his job. If he signed, he could be framed for phony, contrived "security" violations. Worried about this, Spinney went to the Government Accountability Project (GAP), a public-interest law group, for advice. The GAP lawyers, lacking expertise in arcane security matters, passed the question on to an expert, attorney Allan Adler of the ACLU's national office in Washington. Adler said there was nothing wrong with the form, so Spinney held his nose and signed.
In late 1986 Lieutenant Colonel Jim Wolfe brought a copy of SF 189 to my office and asked me to sign. What was his authority for this? I asked. Jim had a couple of letters from a captain and a major in Air Force security, which said that Air Force members should be "encouraged" to sign the secrecy oath. Now, "members" is a term of art for uniformed members of the Air Force; civilians are "employees." So the terms didn't apply to me, and in any case, I hardly felt encouraged to surrender my rights.
I heard no more about this matter until several months after the Santa Claus coup. Then, on May 13, 1987, Captain David Price, General Watts's assistant, came to my office with a copy of SF 189 and an ultimatum: "Sign this or your security clearance will be taken away." Price also brought a pamphlet (DoD 5200.1-R/AFR 205-l) that made the same threat and, worse, went on to say, "Reluctance to sign an NdA (nondisclosure agreement) will be considered a lack of personal commitment to protect classified information."
I've already lost, I thought. I'm reluctant, and therefore I'm untrustworthy. By this logic, I may even be an espionage suspect. All it would take to expose me is a good Thought Policeman.
When I read the rest of the truly daft regulations, I knew I was in even more trouble. It said that the government could decide, retroactively, to classify information that was already public. Furthermore, the hapless signer of the oath might be held accountable for "indirect" leaks. That is, if I gave a congressman an unclassified government document, and a security officer discovered that the document contained something he considered sensitive information (or that he just wanted to cover up), he could declare that the paper was now classified SECRET. And if the congressman had already given it to a reporter, the government could indict me on a criminal charge!
I was in a box. If I didn't sign, I'd lose my security clearance and be fired. If I did sign, my official ill-wishers could frame me and send me to prison. Thinking I must have missed something, that there ought to be some reasonable solution, I called Steven Garfinkel and put the question to him.
Garfinkel is no man to try to sweeten the pill. He said that the whole point of the oath was to "simplify going after leakers."
Signing the oath would mean that I couldn't any longer communicate with Congressman Dingell's staff without getting the approval of third-party "authorities." Despite repeated questions, verbal and written, the Air Force wouldn't even identify who those omnipotent authorities were. I could almost hear the ghost of Mel Laird's assistant, Colonel Bob Pursley, saying, "Such a paper would be of great value if he were to jump the fence again." Meaning: "Then we could cut him off at the knees." Other voices from the past came back with the same message: Gerald Ford's CIA chief George Bush, Jimmy Carter, Nixon's Alexander Butterfield.
Paragraph 7 of SF 189 read, "I understand that all information (not just classified information) to which I may obtain access by signing this agreement is now and will forever remain the property of the United States Government" (emphasis added). Garfinkel made it clear that "the United States Government" did not include Congress or the judiciary of the United States. A nice distinction.
I called Peter Stockton and told him about this incredible conversation. The upshot was that two days later, on May 15, Stockton, Bruce Chafin of Dingell's committee, and I questioned Garfinkel at length. He was even more weird in person than he had been on the phone.
The Air Force regulation supplementing the gag agreement said that "the SF 189 did not impose any obligation beyond those set by law." If we had a law, we asked, why did we need SF 189?
It was just to "simplify going after someone," Garfinkel said. The White House was very angry over leaks. Garfinkel asked a rhetorical question, "What always upsets people at the White House?" And he found the answer: "Leaks!" (Not illegal leaks, or leaks of classified information, or leaks that might endanger national security. Just any leaks.)
Standard Form 189 spoke of classified information as something "that is either classified or classifiable." What did "classifiable" mean? we asked.
"Arguably, it could be anything," Garfinkel said. Well, he added, information that would be universally understood to need classification even though not so marked.
But the DoD pamphlet on SF 189 had a much broader construction. "Classifiable" material, it seemed, could be classified long after it was published on the front page of the New York Times -- just in order to stick it to the person who'd originally released it. I read Garfinkel a passage from the pamphlet:
Question 8B: Can a signer of the SF 189 be held liable under the provision for releasing information from publicly available sources which became classified after these sources were published, but the sources were never sanitized or destroyed?
Answer: Liability would depend on the circumstances of the case. In the case cited (i.e., Snepp v. United States), it is unclear whether the signer had any knowledge that the information from publicly available sources became classified after the sources were published. Therefore, ISOO cannot make a blanket ruling on such limited information.
Another important point: why didn't the word "classifiable" appear in the secrecy agreement to be signed by contractors' employees, SF 189A?
That, Garfinkel said, was because the Defense Investigative Service (DIS) had wanted to simplify the form. If the word were put in, DIS had advised him, "industry will come back screaming."
Would Mr. Garfinkel remove the offensive "classifiable," which "could be anything" and make the government employee form at least as fair as the industry employee form?
Not a chance.
Another discrepancy: SF 189 said government employees who signed were accountable for "all information," but contractor employees were accountable for "classified information" alone.
A discrepancy, Garfinkel agreed. But he didn't want to try to correct it.
What did "indirect unauthorized disclosure" mean?
Garfinkel didn't know. Maybe it would mean leaving classified material lying around for just anybody to pick up. There are "probably a million" examples, he said.
Garfinkel thought the prosecution was beautifully simple. "No common law, no statutes -- just show the form to the judge and say the agreement has been violated -- you don't have to argue principles."
But surely the accused must have some recourse, some protection against selective, arbitrary, and capricious application of the secrecy rules?
Garfinkel couldn't think of any.
Then what about existing contracts? The stiff new secrecy rules seemed to be a retroactive change in the employment contracts of government workers.
Yes, he said, that was the effect. But it was within the president's inherent powers and his authority as commander in chief.
We pointed out that the president was C in C of the armed forces, not of the nation; furthermore, it was the responsibility of Congress "to make rules for the government and regulation of the land and naval forces."
Another dubious aspect was that the new rules went beyond the DoD and the contractors and applied to most executive agencies and government corporations as well. What about the Department of Energy, Commerce, SEC, and TVA (all part of the Dingell committee's oversight) -- would their employees also be muzzled by the gag agreement?
No problem, Garfinkel said. DoE employees and others throughout the government were signing voluntarily.
Knowing that if they didn't sign voluntarily, they'd lose their clearance and their jobs? That, in Henry Catto's phrase, had the "whiff of the jack-boot about it." We went on to press Garfinkel about the statement that "reluctance" to sign raised questions about a person's trustworthiness and loyalty.
He didn't at all care for this provision, he said, but he had no intention of getting it corrected.
After the interview, Stockton said incredulously, "My God! Reagan's carpet bombing the Constitution just to simplify going after a few leakers. Mostly you."
I protested that I didn't "leak" in the accepted sense of the word. I told embarrassing truths in public when I knew that embarrassment was the only way to right wrongs. About the carpet bombing, I agreed.
Drawing on the interview with Garfinkel, we wrote a long report for Dingell, who passed it on to Chairman William Ford of the House Post Office and Civil Service Committee. Ford assigned it to subcommittee chairman Gerry Sikorski, who began to look into SF 189 vigorously.
Perhaps the most startling of Garfinkel's answers was his claim that Mort Halperin, director of the Washington office of the ACLU, had reviewed and approved SF 189 before it was issued.
I called Anne Zill, president of the Fund for Constitutional Government, whose offices were in the same building as the ACLU, and she talked with Halperin directly. When she asked him if he had approved the secrecy oath, he would say only, "Anne, it could have been much worse." He said this was not the right time to go up against the Reagan administration.
At the May 19 meeting of the FCG's board of directors, Anne Zill reported on this, and I reported on my interview with Garfinkel. Louis Clark, director of the Government Accountability Project (GAP), and Tom Devine, its legal director, were particularly interested in the issue. Tom said he would oppose SF 189 in practice and in his forthcoming testimony on constitutional rights for government employees before Senator David Pryor's subcommittee.
I felt that it was crucial to get the ACLU to repudiate SF 189. For better or worse, most liberal members of Congress accepted the ACLU as the authority on First Amendment questions; they would endorse what it endorsed.
Timing was becoming critical. So far, I'd received nothing but oral threats from low-ranking officers for not signing. But let a general officer put the threat in writing and it was a different game. Once a general's pride, prestige, and arrogance were on the line, the administration couldn't back down. Air Force procedures required giving thirty days' notice in writing of its intent to revoke the security clearance of someone who refused to sign the secrecy oath.
Our first soundings of the ACLU brought the reaction that the new requirements, although undesirable, were quite legal; old curmudgeon Fitzgerald was just being obstinate. So on June 12, 1987, I called Allan Adler of the ACLU. He was mildly sympathetic. Only mildly. He said he agreed that the Air Force interpretation of SF 189 requirements was unduly harsh -- he'd talk to Garfinkel about that -- but that the ACLU, after initial opposition, had okayed the "contract," as he kept calling SF 189. He also thought the government intended to require only new hires to sign.
We then got into a complicated discussion of the legal justification for SF 189. Adler said the president's right to make employees sign a secrecy oath derived from his own executive order and from case law.
I pointed out that there was no mention of the new gag rule in the then-current Executive Order, EO 12356, and that NSDD 84, which the government claimed as its legal basis, spoke of an agreement only. There was no mention of a "contract" and, in any case, a contract was invalid if one party to it signed under duress.
Irrelevant, said Adler. The executive could impose an "adhesion contract" and dictate its terms.
But surely the president couldn't attach illegal or unconstitutional provisions to his contract or agreement?
Wrong, he said. There are no established limits on what the president may attach to such contracts in the national security area.
It was quite interesting to find the ACLU in bed with Robert Bork. Adler's position recalled Bork's argument at the American Bar Association's 1979 workshop on law, intelligence, and national security. Bork suggested that it was irrelevant to argue that extralegal violations of an individual's rights for "national security" reasons were unconstitutional. "The question is," he said, "in the circumstances, given the exigencies of the situation and so forth, is there a constitutional right?" Answering himself, he said, "Constitutional rights vary enormously according to the circumstance, according to government need, according to safety, according to all sorts of things."
In other words, if the government has the need to perpetrate some unconstitutional outrage, it may do so. Robert Bork and the ACLU, in the SF 189 case, would sanction it.
Adler went on to lecture me on the importance of working with the "right people" on the Hill if I wanted anything done. Dingell wasn't one of them; Nunn, Stokes, Boren, and Aspin were.
He ended the conversation with a little tutorial on the case of Frank Snepp, reading a "dictum" by Harold Koontz and Cyril O'Donnell, people I'd never heard of, to the effect that the executive could do whatever it wanted in national security matters, and giving me a list of congressional hearings that would show me the error of my ways.
I thereupon got copies of those hearing transcripts and spent a weekend reading them. One witness who struck me as especially well informed and articulate was Jack Landau, then executive director of the Reporters' Committee for Freedom of the Press. He had testified with reason and vigor against NSDD 84 before Jack Brooks's subcommittee on October 18, 1983. But in the course of four and a half months, something strange seemed to have happened to him. When he appeared before Pat Schroeder's subcommittee on February 29, 1984, he was meek and noncontroversial.
When I called Landau to find out the reason, he explained that he and practically all of the working press had wanted to repudiate NSDD 84 once and for all, but they had run up against the power of the ACLU. He said Mort Halperin had "gotten to" the important media editors and persuaded them to live with NSDD 84. Halperin had done the Reagan administration's work for it. "I couldn't take on Mort," Landau said bitterly. "I hope he's happy with what he has."
Meanwhile, Tom Devine and Judge Joe Kennedy of GAP and Dina Rasor of PMP had been talking with Allan Adler to find out why he had swallowed the Reagan administration line. These were the points Dina derived from Adler's apologia:
1. Fitzgerald had signed one security agreement; why make a fuss about the new one? It had been carefully worked out by the Reagan security experts.
2. The fact that the contractors' secrecy agreement differed from the employees' was explained by their being derived from two different executive orders.
3. We were working with the "wrong people." We should be working with the intelligence committees.
4. The ACLU Washington office had initially been in a "big fight" with the administration over NSDD 84 but had been forced to give in.
This was such a collection of surmises and misinformation that I had to answer it point by point.
1. I'd never signed any secrecy oath. Why was Adler pushing such a falsehood?
2. The inequality of the two gag rules was created because, as Garfinkel had put it, "industry would come back screaming" about the harsher version. Further, no one had argued that either gag agreement was required specifically by an executive order, much less by statute. Garfinkel and other authorities insisted that the legal basis was NSDD 84.
3. The House Intelligence Committee had never held hearings on NSDD 84 or SF 189. But one Senate committee (Governmental Affairs, which has jurisdiction over civil service matters) and two House committees (Government Operations and the Post Office and Civil Service's Subcommittee on Civil Service) had.
4. The ACLU's "big fight" wasn't apparent in the records. Halperin had appeared before Congresswoman Schroeder's committee in February 1984, but only to oppose prepublication review of writings by government officials. Even that opposition was much qualified: he didn't want the words of senior officials reviewed and "censored" by junior bureaucrats. For instance, he wanted the wisdom of Harold Brown's writing in an op-ed piece to be undefiled by government scissors. Anything else would be a "serious threat to the First Amendment." He failed to mention any concern for the First Amendment rights of junior officials or whistle blowers.
Pursuing this attempt to look into the mind of the ACLU, I looked at Halperin's 1977 book, Top Secret: National Security and the Right to Know. There he wrote (page 65):
In addition to legislative categories for mandatory disclosures, Congress should designate certain kinds of information as presumptively secret, because they are not in general important for public debate, while their release could have detrimental effects on national security.
"Presumptively secret" sounded a lot like Reagan's ineffable "classifiable information." Perhaps the Reagan team had stolen the idea and changed the name. Halperin's list of such mysteries included:
1. Weapons systems: Details of advanced weapons systems design and operational characteristics.
2. Details of plans for military operations.
3. Intelligence methods: Codes, technology, and spies.
The first category was the scary one. If it had been in place and rigidly enforced under the ex post facto "classifiable" lunacy, the Pentagon underground would never have been able to disclose dangerous deficiencies in some of our advanced weapons' systems. We'd be faced, hypothetically, with having to go to war with faulty planes and missiles that didn't work, with nobody the wiser. And Halperin's rules could have me in prison, along with Dina Rasor and a lot of other good people.
Halperin's other rule was that senior officials know best: "presumptively secret" information can be released "if responsible officials are satisfied that there is a strong need for the information for public debate on a major issue" (p. 65). This is a corollary to his congressional testimony: all senior officials believe that "everything is classified unless they decide it ought not to be classified."
It is hard to imagine the Reagan administration taking its cue from an ACLU lawyer, but the Defense Department regulation of April 28, 1987 (DoD 5200.I-R) echoed Halperin's ideas:
Classified information may be made available to individuals or agencies outside the Executive Branch provided that such information is necessary to the performance of a function from which the government will derive a benefit or advantage, and that such release is not prohibited by the originating department or agency.
From all this I decided that Ken Lawrence had been right. Lawrence, a civil rights activist, in the fall of 1981 wrote a sixteen-page memorandum to "people concerned about the decline of civil liberties in the U.S." Titled "Subject: Morton Halperin, Jerry Berman, the American Civil Liberties Union and the Campaign for Political Rights," the memo claimed that:
When ACLU representatives are convinced that the political climate is such that the legislatures and the courts won't respect constitutionally guaranteed rights, they seek to strike the best possible compromise, sacrificing some rights (or the rights of some) in order, as they see it, to preserve others, rather than to take a "purist" position, which many of them ridicule.
Hardly the views of an Alexander Hamilton, a Clarence Darrow, or a Martin Luther King. Would any of them have made a quiet deal -- okayed the contract, as Adler put it -- on civil rights with Ronald Reagan?
***
D-day for the Air Force assault on Fitzgerald came on July 2, 1987, at five o'clock in the afternoon. Lieutenant General Claudius E. Watts III sent two of his men to my office to deliver two messages. The first, as I mentioned at the end of Chapter 14, canceled my assignment to assist Congressman Dingell and his committee. The second revoked my security clearance on thirty days' notice and, practically speaking, removed me from my job.
The timing of the delivery was intended to be devilish shrewd. It was just minutes before the beginning of a three-day Fourth of July weekend, after which was scheduled the biggest media event in years: the public testimony of Lieutenant Colonel Oliver North in the Iran-Contra hearings.
The attempt to bury me silently might have worked if it hadn't been for the dedicated young people at the Project on Military Procurement. Friday, July 3, was a holiday in Washington, but Dina Rasor, John Riley, and Danielle Brian-Bland hand-delivered press packets on the Pentagon's plans to "get rid of that son of a bitch Fitzgerald," as Nixon had said so long before, to media offices all over town.
Because of the holiday, most of the reporters on duty were junior people. Veteran reporters might have dismissed this as just another Fitzgerald-in-trouble tale, but to the younger ones it seemed a significant story on a deadly dull news day. As a result, Associated Press and United Press International put excellent stories on the wire to appear in just about every Sunday paper in the country. The New York Times and the Washington Post interviewed me by telephone and wrote their own stories. The Cleveland Plain Dealer carried its hard-hitting story with a banner headline on the front page. Once again the Pentagonists had outsmarted themselves.
In response to questions raised by Representative Barbara Boxer, Reagan's national security adviser, Frank Carlucci, wrote a letter (September 21, 1987) summarizing the history of "the current controversy over Standard Form 189," as he put it. Carlucci first noted that the controversy "began when Air Force Employee A. Ernest Fitzgerald was first asked to execute the non-disclosure agreement in January 1987." The meeting with Garfinkel, and the subsequent letters from members of Congress to the White House, the Office of Personnel, and the ISOO, questioned the legality of certain things in SF 189. Carlucci continued:
These letters were also released to the news media, which commenced a series of news articles, stories, op-ed pieces, and editorials on the nondisclosure agreement, almost all of which contained serious errors of fact. This media attention, in turn, led to constituent correspondence to other members of Congress, more congressional inquiries, more media attention, etc. Within a couple of months, the situation had snowballed into a major controversy. Fueling the controversy have been a number of misrepresentations and misunderstandings about the SF 189 that have appeared repeatedly in both the media accounts and congressional pronouncements.
Carlucci did not back up his charges of "serious errors of fact" or "misrepresentations," nor were any ever revealed, but otherwise his account was a fairly accurate summary.
The ACLU continued to play a dubious role. Newsday reporter Marie Coco, working on a story about SF 189, killed it when Allan Adler told her (according to Dan Sweeney of GAP, who had been working with Coco) that the form was "underhanded and odious but legal." By July 7, when he talked with Dina Rasor, Adler was hedging a little more. He said that no First Amendment rights were involved in SF 189 and that no citizen had any right to a security clearance, but since 1already had one, I had certain procedural rights that had to be observed before it could be taken away.
On July 8 I had an interesting conversation with Kirk Robertson, assistant to Senator David Pryor. He said that the senator wanted to help us, but he warned me that the ACLU seemed to be running a sub rosa lobby against us. Someone from ACLU had called Pryor's office to argue that SF 189 was not illegal.
That same day Russ Hemenway, chairman of FCG, called to report a sign of moderation at the ACLU: Halperin had said that GAP and the ACLU were negotiating the term "classifiable" with ISOO, and he thought they'd get a compromise that would persuade me to sign SF 189. Another note of some interest was Kris Kolesnik's discovery that Garfinkel's supporting cast in approving the standard form had been Ed Meese's assistant attorney general, Richard Willard, Andy Feinstein of Pat Schroeder's staff -- and Allan Adler.
In the meantime, the ACLU was gradually feeling the pressure. Marion Edey of the FCG board rallied some of its financial supporters to our side and persuaded Ralph Nader to make calls to Halperin and Feinstein. The GAP lawyers negotiated with the ACLU for two weeks. The result was a July 16 memorandum from Adler, which contained some fairly tough dissection of SF 189. That was a short-term tactical benefit for us, but what drew my attention in the memo was a fascinating constitutional issue. Adler wrote:
The ACLU finds no inherent constitutional barrier to an Executive Order requirement that government employees and other individuals, as a condition of being granted access to classified information, must sign an agreement which (a) imposes an obligation not to disclose such information without authorization and (b) is legally enforceable in a civil action for breach of contract.
Here the ACLU seemed to be taking Robert Bork's advice that the government can do anything not expressly forbidden in the Constitution. My friends and I argued that the government can do only those things expressly authorized in the Constitution. Was the ACLU really willing to set aside the Ninth and Tenth Amendments?
Another salient constitutional point at issue was that of "unauthorized disclosure," especially in regard to giving information to Congress. Heretofore all members of Congress had been considered "authorized" to receive information, classified or not, from executive branch employees. By reason of their election, members of Congress are presumed "trustworthy" and therefore have "security clearances" and access ("need to know," as determined by the aforementioned nameless "authorities") to classified information in accordance with the rules of the House and of the Senate, which restrict distribution of some classified information within Congress.
By default, many members of Congress had acquiesced in the executive's control of "classified" information (under Reagan, almost everything important or embarrassing). The Reaganites were seeking to make formal the substitution of executive branch rules for congressional rules governing access by members of Congress. The Reagan team was trying to keep Congress in the dark by imposing its own rules under which "authorization" meant specific approval by the executive branch of each specific communication to Congress.
Steven Garfinkel underlined this in a Boston Globe interview on September 13, 1987: "Garfinkel maintained ... that legislators must demonstrate a 'need to know' before receiving classifiable information. 'No worker may provide classifiable ("it could be anything") information to Congress without first receiving the approval of the agency he works for,' Garfinkel said."
The ambiguous behavior of the ACLU aroused the interest of civil rights activist Mae Churchill, and in August she wrote Ira Glasser, the ACLU's national executive director, with some questions. (Churchill later packaged her exchanges with Glasser and distributed the package as widely as possible to First Amendment defenders.) Did the positions of the Washington office reflect those of the national board? Did the national board approve them? Did individual affiliates have any voice in such policy decisions? How did the Washington staff arrive at the positions it took in dealing with the administration and as "spokesman for the ACLU"? Then, the most pointer question of all: "Why has government secrecy been given tacit approval in ACLU's name?"
She was defining the second major issue that had arisen out of the controversy over SF 189: was an institution known as a dedicated protector of civil and individual rights being compromised by a few men playing an insider game?
On October 19 Glasser belatedly replied with a Machiavellian answer. He did not deal with the queries about policy formulation or accountability, nor did he venture a reply to the question about tacit approval of government secrecy. What he did do was paint a highly imaginary picture of a fearless ACLU springing early into battle with the administration over the secrecy agreement. Consider this:
We raised substantial objections from the outset both with respect to pre- publication review requirements and with respect to the overbroad definition of "classifiable" information, citing, in our July 16 memorandum, the potential for "overreaching ex post facto interpretations which would illegally and, we believe, unconstitutionally broaden the government's authority under this agreement to reach disclosure of unclassified information and other communications that are not prohibited by law (emphasis added).
The memorandum goes on to oppose SF 189 and urge its rescission. Our letter of July 28 to Stephen Garfinkel responding to ISOO's draft rule, which purported to address the concerns in our July 16 memorandum, repeats those concerns and opposes the draft rule as insufficient. The letter concludes by urging ISOO not to proceed with the promulgation of the draft rule.
"From the outset"? SF 189 had been around since 1983, but the first detectable evidence of any ACLU objection (save for Halperin's narrow dispute of the prepublication review) came in Adler's memorandum of July 16, 1987. By then, of course, there was all that accumulated evidence that the Washington ACLU had "okayed the contract."
Glasser then mixed fiction with sarcasm. His letter to Churchill went on:
Even if, from your distant outpost in Pacific Palisades, you are unaware of the firm and steady opposition of the ACLU to the singularly oppressive qualities of SF 189, it seems to me impossible to fairly read our memorandum of July 16 and the follow-up letter of July 28 and nonetheless conclude that the ACLU "raised no substantial objections" (emphasis added).
Having been in no "distant outpost" but in the Pentagon attic in the middle of the storm, I had plenty of reason to believe that the "firm and steady opposition" had been very late and unsteady. In fact, there was good reason to think that the ACLU was still privately content with SF 189. In late July Adler had told Tom Devine that the SF 189 storm was all just because "Ernie doesn't like secrecy agreements. Ernie wants to attack secrecy agreements and the administration." He added that the only real problems with the agreement were vagueness in the term "classifiable" and conflicts with provisions of the whistle blower law.
By then Adler was a step behind the administration, which had admitted some errors. In a series of changes published in the Federal Register during July, it had backed down on the notion of holding employees accountable for "all materials" and had narrowed that to "classified materials." And it had dropped the ambiguous provision holding employees accountable for information that "may have" come into their possession.
Nevertheless, in October the Reagan team pushed its security fixation to the point of absurdity. Representative Jack Brooks had requested some information from the Department of Energy in order to carry out the oversight functions of his committee. James Herrington, the DoE secretary, then had the foolhardiness to send a functionary to Brooks with an SF 189 that was to be signed before he would hand over the information.
The administration had chosen the wrong man to push its bad idea on: Brooks's blast was majestic. He wrote that this act "deeply offends the basic constitutional framework of the separation of powers," and that "such a contract is incompatible with the First Amendment to the Constitution, regardless of who is asked to sign it."
When Representative Gerry Sikorski's subcommittee held its hearing in mid-October, I testified. No representative of the ACLU was invited to appear, but Allan Adler was present and busy in the corridors explaining to reporters or anyone else who would listen that SF 189 was not all that bad. During one break he tried to trap me in the presence of some Air Force judge advocate general (JAG) officers -- military lawyers -- and challenge me to say whether I'd support any sort of secrecy at all. Then, as the JAG officers scribbled away, he made his own case for secrecy. The ACLU was still bringing up the rear in this fight against "the singularly repressive qualities of SF 189."
***
In my difficulties I had a lot of generous and heartwarming support. Senator Grassley and Kris Kolesnik went to see Howard Baker on my behalf; senators Proxmire and Pryor offered support; and representatives Sikorski, Boxer, and Aspin demanded an explanation from National Security Adviser Carlucci. When the military prepared to drop the axe on me, John Bodner requested and got a hearing before Judge Bryant to argue that the administration hadn't provided the substantive answers (which they were required to provide) to our constitutional and legal questions about the gag order. The Pentagon then extended my deadline for signing by two weeks.
Just a few days earlier the National Federation of Federal Employees (NFFE) had filed a suit challenging the gag agreement in the U.S. District Court. The NFFE suit was assigned to Judge Oliver Gasch, who had a reputation for more or less blind support of the federal national security apparatchiks. Sensing an opportunity to escape from John Bodner and constitutionalist Judge Bryant, the administration decided to stage the whole legal fight in the much more favorable climate of Judge Gasch's court.
In the meantime the American Federation of Government Employees (AFGE) had filed a similar suit in which an Air Force cryptologist named Louis Braase was a central figure. Braase had an unblemished record of thirty-two years of government service. A highly regarded teacher in the field of cryptology, he had held a Top Secret clearance for most of his career.
His only crime was that he had stood up for his constitutional rights against the gag agreement. The colonel he worked for, saying that in his position Braase had no constitutional rights, suspended him from his duties and sent him home. When public and congressional pressure forced the Air Force to back down and allow Lou to go back to work at the Air Force base, he was restricted to nonsecure areas and given routine clerical work.
A man of high character and exemplary record, Braase was ideal for a test case. My handicap was that my reputation had been scarred (the stab wounds were largely in the back) by successive generations of politicians and brass. And unlike me, Braase had never suffered the animus of the ACLU or Ralph Nader's lawyers. That made it possible for a redeemed Nader to make the beau geste and send one of his bright young lawyers, Patti Goldman, to represent the congressmen who had joined the legal fight. Ralph's return to the fold restored my faith in the perfectability of man. The Halperin-led ACLU sat on its hands, though.
The next move was led by Senator Grassley, who got Congress to attach to a spending resolution for fiscal 1988 a provision forbidding the executive branch to implement the new secrecy agreements for the first ten months of 1988 and allowing federal employees to communicate directly with Congress.
When the suits were heard in Judge Oliver Gasch's court, the executive branch argued that the president has "plenary" responsibilities and power in the national security area ("plenary" in this context means "absolute" or "unqualified"). The administration also brought as a witness an Air Force general working for the CIA, who said flatly that the intelligence community would not abide by the provision outlawing the gag agreement in the Continuing Resolution (the omnibus substitute for appropriations laws) passed by Congress and signed by the president.
In a judicial opinion laden with scary implications, Judge Gasch, on May 27, 1988, ruled against the congressmen's suit. He agreed with the contention that the president has "plenary powers" over national security matters, and he placed no bounds on the domain of national security. He cited NSDD 84 and "sovereign prerogative" in ruling that any non-disclosure agreement for federal employees was not subject to existing laws. And he found "particularly offensive" Congress's assertion of its right to receive information directly from government employees despite the constitutional right protected by Title 5, Section 7211, of the U.S. Code (the law passed in reaction to Teddy Roosevelt's gag order).
Thus the administration and its judicial ally had done everything in its power to prevent citizens who work for the government from transmitting any embarrassing information about abuses of trust to their elected representatives in Congress.
***
How had the great security campaign evolved in the Reagan years, and to what purpose? Early in the administration, Assistant Attorney General Richard Willard, had headed a commission on "leaks" that had, in part, concluded:
The unauthorized disclosure of classified information has been specifically prohibited by a series of Executive Orders dating back at least to 1951. Such disclosures also violate numerous more general standards of conduct for government employees based on statutes and regulations. It is clear that any government employee may also be discharged or otherwise disciplined for making unauthorized disclosures of classified information. Moreover, in virtually all cases the unauthorized disclosure of classified information potentially violates one or more federal criminal statutes.
Furthermore, Willard said, laws already on the books could be used to "protect" against the news media: "These laws could also be used to prosecute a journalist who knowingly receives and publishes classified documents or information." The report did not really deal with the problem of disclosures to Congress.
There was one rather startling and iconoclastic admission. The commission found that "some of the most embarrassing leaks do not involve classified information at all."
In sum, the commission felt that protection of classified information and violations of security could be easily treated under existing law. Even Air Force Regulation 205-1, which put SF 189 into effect, argued, though insincerely, that "SF 189 does not impose any obligations beyond those set by law."
Then what was the source of this drive for a new and troublesome secrecy requirement, overlaid on a perfectly effective body of law? The evidence offered by Stephen Garfinkel, certainly an authoritative source, suggests that the idea was to have a handy instrument for summary punishment on the vaguest of charges. Recall that the White House was worried not about security leaks specifically, but about leaks in general, including "indirect release" of "classifiable" information.
As John Dingell wrote in his letter of May 18, 1987, to Congressman Ford, Garfinkel said that SF 189 would "simplify going after someone." How? In our interview he explained: "No common law, no statutes -- just show the form to the judge and say the agreement has been violated. You don't have to argue principles."
In other words, no due process.
In France, under the old monarchy, there was a legal instrument called a penal lettre de cachet. By the king's order, any subject could be seized and, with no opportunity for defense, sentenced to imprisonment or transportation. The king seldom knew anything about the issuance of such letters, they were signed by a secretary of state, and they served as a swift and secret way to get rid of the government's enemies or dangerous writers. It took a revolution to abolish them. To repeat Stephen Garfinkel's formulation, "No common law, no statutes. Just show the form to the judge and say the agreement has been violated."
