SECRETS The CIA's War at Home
a book By Angus
Mackenzie
The CIA
and the Origins of the Freedom of Information Act
The Cover-up
Begins,
You Expose Us-We Spy on You
CIA Censors Books,
Bush Perfects the Cover-up
Hiding Political Spying
One Man Says No
Control of Information
CIA Openness Task Force
Epilogue: The Cold
War Ends and Secrecy Spreads,
Targets of Domestic Spying
Congressman Clare E. Hoffman's first reaction to the National Security Act of
I947 was exceedingly positive. Indeed, Hoffman, a conservative Michigan
Republican who chaired the House Committee on Government Operations, agreed to
introduce the legislation in the U.S. House of Representatives. The surprise
Japanese bombing of Pearl Harbor in I94I had profoundly shaken American
intelligence officials, and it was generally agreed that the absence of a
centralized intelligence authority was at least partly to blame. Once the war
was over, Army Major General Lauris Norstad and Navy Vice Admiral Forrest
Sherman laid out a plan for the consolidation of command and intelligence. The
Joint Chiefs of Staff would oversee military planning at the Pentagon; a
National Security Council would coordinate the conduct of foreign affairs and
national security matters at the White House; and, most important, a Central
Intelligence Agency, independent of both the Pentagon and the White House, would
function as a neutral repository of military intelligence.
Norstad and Sherman's plan was incorporated in the National Security Act, and
with Hoffman's support it was expected to sail smoothly through Congress. The
more Hoffman studied the legislation, however, the more it troubled him. The
proposed CIA was to advise the National Security Council in matters concerning
intelligence, to make recommendations for the coordination of spying, to
disseminate intelligence, and to perform "other functions and duties related to
intelligence affecting the national security as the National Security Council
may from time to time direct." Hoffman feared this open-ended authority.
Hoffman's concerns were shared by a fellow Midwestern conservative
Republican, Clarence J. Brown of Ohio, who also worried about the seemingly
unlimited power of the proposed director of Central Intelligence. In open
hearings, Brown confronted Secretary of the Navy James Forrestal, a key advocate
of the plan. "I am not sure that I want to trust, unless it is just absolutely
necessary, any one individual or any one group with all-out power over citizens
of the United States," Brown remarked. "How far does this central intelligence
agency go in its authority and scope?" He posed a hypothetical question: "Should
[the CIA director] decide he wants to go into my income tax reports, I presume
he could do so, could he not?"
"No, I do not assume he could," Forrestal replied.
Brown pressed on. "I am not interested in setting up here, in the United
States, any particular central policy agency under any president, and I do not
care what his name may be, and just allowing him to have a Gestapo of his own if
he wants to have it." Forrestal argued that the CIA's authority would be
"limited definitely to purposes outside this country." But when asked a key
question-"Is that stated in the law?"-Forrestal was stymied: "It is not; no
sir."
Without protections for domestic liberties written into the law, it was easy
to imagine any number of situations in which the power of the proposed CIA or
its director could go unchecked: the president could use the CIA to spy on
Congress, could secretly manipulate elections, or could undermine political
opponents. The greatest danger was that, once created, the CIA would be hard to
contain. Should Congress try in the future to legislate a change, the president
could veto such legislation and attack members of Congress for being weak on
national security. Hoffman said, "If we are going to fix anything we had better
do it now before we turn over any blanket authority to anyone because we can
never get it back."
Admiral Sherman suggested a compromise. The CIA would not have "police, law
enforcement, or internal security functions," and it would be prohibited from
"investigations inside the continental limits of the United States and its
possessions." Once this bargain was struck, most opposition to the CIA faded
away. Little attention was given to a seemingly innocuous sentence buried in the
proposal: "The Director of Central Intelligence shall be responsible for
protecting sources and methods from unauthorized disclosure."
Almost no one foresaw the sweeping secrecy powers that would emanate from
those few words. Almost no one had a hint that these words would be taken by
courts, twenty-five years later, as congressional authorization for peacetime
censorship in a nation that had been free of such censorship for nearly two
hundred years. Almost no one, that is, except Hoffman, who had become convinced
that the new CIA was anathema to a democracy. Although he had introduced the
bill in the House, Hoffman at the end was speaking sharply but unsuccessfully
against it-virtually a solitary voice in the wilderness.
In the decades that followed the passage of the I947 National Security Act,
the CIA would become increasingly involved in domestic politics, abridging the
First Amendment guarantees of free speech and press; it would spy on law-abiding
American dissidents, tell the Internal Revenue Service to investigate political
"enemies" of the Agency, and attempt to silence news reporters and news
publications in order to keep the American public from learning that the I947
law was being systematically violated. Moreover, more than four million
employees and contractors of the United States government would be prevented
from disclosing matters of wrongdoing, large or small, because the I947 act
would be interpreted as an endorsement of widespread censorship.
In I954 Congressman John Emerson Moss, a Democrat from California, tried to
find out if supervisors at federal agencies were using allegations of security
violations as an excuse to fire federal employees who were not well liked or who
had contrary political views. Moss wrote to the Civil Service Commission, asking
for a review of dozens of firings, but he was not afforded even the courtesy of
a reply. "No response, no letter, no nothing," he said. Moss realized that
certain members of the executive branch had little more than contempt for
congressional prerogatives. His response was to introduce the Freedom of
Information Act, known as the FOIA. The FOIA was designed as a legal means of
access for members of Congress, as well as for citizens at large, to obtain a
wide array of documentary information from inside the executive branch.
At earlier times in American history not only would the FOIA have been
enacted as a matter of course by Congress, it would have been perceived as part
of mainstream political tradition. The American government's dedication to a
policy of openness had been one of its hallmarks since the War of Independence.
In the panic and self-doubt that followed the catastrophe at Pearl Harbor,
however, a different attitude had begun to prevail in the corridors of
government. During World War II new regulations were instituted, imposing an
unprecedented regime of secrecy in Washington, and with the onset of the cold
war many high-ranking government officials believed that the wartime rules
should continue in force.
As the Eisenhower administration gave way to the Kennedy administration and
in turn to the Johnson administration, Moss still did not have enough votes in
Congress for his bill to pass. Even though by no stretch of the imagination
would the FOIA have caused the release of legitimate secrets-plans for nuclear
weaponry, for instance, or private communiqués between heads of state-it was
construed as a threat by a new school of political thought. For the first time
in American history, the combined wisdom of official Washington leaned toward
advocating secrecy and restricting openness as much as possible. This school of
thought, which had been codified in the I947 National Security Act, ran counter
to the very foundation of American democracy, and yet in the atmosphere of the
cold war it passed for patriotism.
In I966 Moss achieved a political breakthrough, and the FOIA became law. The
essential conflict, however, was far from resolved. In fact, the conflict was
merely formalized. The Freedom of Information Act's requirements of openness
placed it on a collision course with the National Security Act and its
provisions for secrecy. For the next three decades there would be a series of
confrontations between those devoted to reducing governmental secrecy and those
bent on adding more layers to it.
The Cover-up Begins
Late at night at the watering holes of American intelligence agents, the
mention of Stanley K. Sheinbaum's name can still arouse a muttering of anger.
Sheinbaum was the first person to go public with his experience of CIA activity
in the United States--a story about the Agency's infiltration of a legitimate
civilian institution. Sheinbaum so embarrassed senior officials of the CIA that
they set in motion an elaborate internal operation intended to prevent anyone
else from ever doing what he had done.
Sheinbaum's connection with the CIA began in the 1950s, a period when
security officers at the rapidly expanding Agency were sometimes overworked. On
occasion they neglected to ask someone to sign a secrecy contract, which was
normally a prerequisite of employment. Once signed, it committed a CIA agent to
complete secrecy, beginning with the first day on the job and continuing until
death. But Sheinbaum's association with the CIA was indirect, through a
university that turned out to be working under contract with the Agency. He was
never a CIA employee and, as far as he can remember, was never asked to sign a
secrecy agreement. During his days as a doctoral student at Stanford University
and as a Fulbright fellow in Paris, Sheinbaum developed a strong interest in
helping the economies of underdeveloped nations expand. When his Fulbright ran
out in the summer of 1995, he landed a position at Michigan State University,
working on a $25 million government project to advise South Vietnamese President
Ngo Dinh Diem. By 1957, Sheinbaum was coordinator of the project.
His new responsibilities included inspecting work in Vietnam. Before he went
on a trip there in 1957, university officials told him about the general CIA
connection; once there, Vietnamese officials informed him that his project staff
included CIA officers. The revelation bothered him. He thought it inappropriate
that he and other legitimate academic advisers were being used as cover for U.S.
government manipulation. Sheinbaum left Vietnam feeling that his work and his
program had been compromised. Upon his return to the United States, he was
further entangled when he was called upon to meet with four top South Vietnamese
officials in San Francisco. "Within an hour of their arrival," Sheinbaum later
recalled, "the youngest, a nephew of Ngo Dinh Diem, conspiratorially drew me
aside and informed me that one of the others was going to kill the eldest of the
group." While taking steps to thwart the plot, Sheinbaum realized that his
original goal, the economic improvement of impoverished nations, was getting
lost in his administrative work as coordinator. His growing dismay--at what he
later called the "unhealthy" CIA component and the general U.S. policy ... in
Vietnam"--led him to resign from the project in 1959.
By this stage, however, Sheinbaum had information that was confidential.
Following the buildup of U.S. troops in Vietnam and the assassination of Diem,
Sheinbaum decided it was his patriotic duty to publicize information that he
hoped might put the brakes on U.S. involvement. Writing about the connections
between Michigan State University, the CIA, and the Saigon police (with the help
of Robert Scheer, a young investigative reporter), the Sheinbaum story was to
appear in the June 1966 issue of Ramparts magazine. The article disposed that
Michigan State University had been secretly used by the CIA to train Saigon
police and to keep an inventory of ammunition for grenade launchers, Browning
automatic rifles, and .50 caliber machine guns, as well as to write the South
Vietnamese constitution. The problem, in Sheinbaum's view, was that such secret
funding of academics to execute government programs undercut scholarly
integrity. When scholars are forced into a conflict of interest, he wrote,
"where is the source of serious intellectual criticism that would help us avoid
future Vietnams?"
Word of Sheinbaum's forthcoming article caused consternation on the seventh
floor of CIA headquarters. On April 18, 1966, Director of Central Intelligence
William F. Raborn Jr. notified his director of security that he wanted a "run
down" on Ramparts magazine on a "high priority basis." This strongly worded
order would prove to be a turning point for the Agency. To "run down" a domestic
news publication because it had exposed questionable practices of the CIA was
clearly in violation of the 1947 National Security Act's prohibition on domestic
operations and meant the CIA eventually would have to engage in a cover-up. The
CIA director of security, Howard J. Osborn, was also told: "The Director [Raborn]
is particularly interested in the authors of the article, namely, Stanley
Sheinbaum and Robert Scheer. He is also interested in any other individuals who
worked for the magazine."
Osborn's deputies had just two days to prepare a special briefing on Ramparts
for the director. By searching existing CIA files they were able to assemble
dossiers on approximately twenty-two of the fifty-five Ramparts writers and
editors, which itself indicates the Agency's penchant for collecting information
on American critics of government policies. Osborn was able to tell Raborn that
Ramparts had grown from a Catholic lay journal into a publication with a staff
of more than fifty people in New York, Paris, and Munich, including two active
members of the U.S. Communist Party. The most outspoken of the CIA critics at
the magazine was not a Communist but a former Green Beret veteran, Donald
Duncan. Duncan had written, according to then CIA Deputy Director Richard Helms,
"We will continue to be in danger as long as the CIA is deciding policy and
manipulating nations." Of immediate concern to Raborn, however, was Osborn's
finding that Sheinbaum was in the process of exposing more CIA domestic
organizations. The investigation of Ramparts was to be intensified, Raborn told
Osborn.
At the same time, Helms passed information to President Lyndon Johnson's
aide, William D. Moyers, about the plans of two Ramparts editors to run for
Congress on an antiwar platform. Within days, the CIA had progressed from
investigating a news publication to sending domestic political intelligence to
the White House, just as a few members of Congress had feared nineteen years
earlier.
Upon publication, Sheinbaum's article triggered a storm of protests from
academicians and legislators across the country who saw the CIA's infiltration
of a college campus as a threat to academic freedom. The outcry grew so loud
that President Johnson felt he had to make a reassuring public statement and
establish a task force to review any government activities that might endanger
the integrity of the educational community. The task force was a collection of
political statesmen--such as Attorney General Nicholas Katzenbach and Secretary
of Health, Education, and Welfare John Gardner--but also included Richard Helms,
the CIA official who himself had been dealing in political espionage. The
purpose of the task force, it soon became clear, was to forestall further
embarrassment and preclude any congressional investigation of CIA operations.
Helms, furthermore, organized an internal task force of directorate chiefs to
examine all CIA relationships with academic institutions but that review, from
all appearances, was designed only to ensure that these operations remained
secret.
Meanwhile, CIA officers spent April and May of 1966 identifying the source of
Ramparts's money. Their target was executive editor Warren Hinckle, the
magazine's chief fund-raiser and a man easy to track. He wore a black patch over
one eye and made no secret of the difficult state of the magazine's finances as
he continually begged a network of rich donors for operating funds. The agents
also reported that Hinckle had launched a $2.5 million lawsuit against Alabama
Governor George Wallace for calling the magazine pro-Communist (information that
Osborn dutifully passed on to Raborn). The real point of the CIA investigation,
however, was to place Ramparts reporters under such dose surveillance that any
CIA officials involved in domestic operations would have time to rehearse cover
stories before the reporters arrived to question them.
Next, Raborn broadened the scope of his investigation of Ramparts's staff by
recruiting help from other agencies. On June 16, 1966, he ordered Osborn to
"urge" the FBI to "investigate these people as a subversive unit." Osborn
forwarded this request to the FBI, expressing the CIA's interest in anything the
FBI might develop "of a derogatory nature." One CIA officer, who later inspected
the CIA file of the Ramparts investigation, said that the Agency was trying to
find a way of shutting down the magazine that would stand up in court,
notwithstanding the constraints of the First Amendment.
----
In January 1967, in the dining room of the Algonquin Hotel in New York City,
Hinckle met Michael Wood, a former employee of a CIA contractor like Sheinbaum.
Wood, twenty-four years old, was nervous. A Pomona College dropout, he had been
a fund-raiser for the National Student Association, whose representatives
attended a variety of international meetings on behalf of three million American
college students. In the course of his work, Wood learned that money for the
student association was coming from the CIA Covert Action Division No. Five. The
CIA was funding the association in order to counter the Moscow-dominated student
groups around the world and to assist with recruiting foreign students. Having
financed a large segment of the association's budget, the CIA had effectively
made agents out of many of the association's senior officers. Wood told Hinckle
that the CIA had required most officers of the student association to sign
secrecy oaths, leading the students to believe they would be imprisoned if they
violated the oath. Wood was one of the very few students who both knew about the
CIA connection and had not signed a secrecy contract. He had in his possession
copies of the association's financial records, which he turned over to Hinckle.
Hinckle was wary. "Wood's story was not one calculated to instill faith in
the skeptic," he wrote later. Hinckle told his reporters to check Wood's story.
They found that several years earlier, Texas Congressman Wright Patman had
openly identified eight philanthropic foundations serving as undercover
financial conduits for the CIA. Obtaining publicly available IRS records on the
tax-exempt foundations, Hinckle's reporters cross-referenced them with the
financial records that Wood had provided. To their astonishment, they discovered
that the foundations named by Congressman Patman had funded the National Student
Association. Wood was telling the truth. Hinckle could scarcely believe the
CIA's poor spycraft: even after the CIA conduits had been exposed, the Agency
had continued to use them. The Ramparts reporters soon ran into obstacles,
however. "The CIA knew we were onto their game before we had time to discover
what it really was. Doors slammed in the faces of our inquiring reporters....
The blank walls were impressive," Hinckle recalled.
Meanwhile, President Johnson had replaced Raborn as CIA director with Helms,
who immediately made a crucial decision. He transferred responsibility for the
Ramparts operation away from Osborn to a key CIA operative whose identity would
not be known for years. Richard Ober's name is curiously absent from indexes of
books about political spying of his era. Ober managed to keep in the shadows--a
force behind the scenes, a man careful to say nothing that would reveal his true
role. Few of his associates would even admit to knowing him. It was a breach of
the code when one associate gave me a rough description of Ober as a big man
with reddish skin and hair.
Ober was a counterintelligence specialist in the Directorate of Plans,
sometimes known as the dirty tricks department. He had joined the Agency in 1948
and had a background that CIA directors trusted--Harvard class of 1943, army
experience, graduate study in international affairs at Columbia University. At
the CIA, Ober had completed two tours of duty abroad, returning to run
clandestine operations from a desk and to study at the National War College
before becoming the elite of the elite: a counterintelligence officer. Ober and
his fellow counterintelligence agents worked in isolation from the rest of the
Agency, in the most secret of the Agency's secret compartments.
Counterintelligence involves destroying the effectiveness of foreign
intelligence services and protecting one's own spies from exposure and
subversion. During the 1950s and early 1960s counterintelligence had been widely
expanded to all manner of internal police jobs, which now included stopping
American publications from printing articles about questionable CIA operations.
As Ober studied the legal options for getting the courts to prevent Ramparts
from printing a story about the National Student Association, he found that none
existed. There simply was no legal precedent for stopping publication. Instead a
decision was reached to try to achieve "damage control." A press conference was
planned before Ramparts was due to break the story. Leaders of the National
Student Association were to admit to their CIA relationship and were to say it
had been ended at their insistence. The plan was to steal the thunder from the
Ramparts story, limiting its impact by making it old news.
However, Hinckle discovered the plan before the press conference could be
held. "I was damned if I was going to let the CIA scoop me," recalled Hinckle.
"I bought full-page advertisements in The New York Times and Washington Post to
scoop myself, which seemed the preferable alternative." Hinckle's ad read, "In
its March issue, Ramparts magazine will document how the CIA has infiltrated and
subverted the world of American student leaders over the past fifteen years." On
February 13, 1967, the day before Hinckle's advertisements appeared, the news
that they were forthcoming panicked the CIA, the State Department, and the White
House. The acting secretary of state drafted a secret memorandum for President
Johnson suggesting a Plan B for handling this fiasco. The State Department,
making a "bare bones" admission, would claim that the student operation was
"tapering off" and would soon come to a complete halt.
Even as the fallback plan was being developed, a new surprise was in the
works. Although CIA officers had already told the students not to talk, one of
the student leaders confirmed to reporters the accuracy of the Ramparts
allegations. Hinckle was astounded yet again: "It is a rare thing in this
business when you say bang and somebody says I'm dead."
In short order, eight influential congressmen--California Democrats George E.
Brown Jr., Phillip Burton, and Don Edwards, plus Democrats John G. Dow, Benjamin
S. Rosenthal, and William F. Ryan of New York, Robert W. Kastenmeier of
Wisconsin, and John Conyers Jr. of Michigan--signed a letter of protest to
President Johnson. It arrived at the White House the same evening the Ramparts
advertisements were printed. "We were appalled to learn today that the Central
Intelligence Agency has been subsidizing the National Student Association for
more than a decade," the letter said. "It represents an unconscionable extension
of power by an agency of government over institutions outside its jurisdiction.
This disclosure leads us and many others here and abroad to believe that the CIA
can be as much a threat to American as to foreign democratic institutions."
The day after the ads appeared, the IRS acted on a request from the CIA by
providing copies of Ramparts's tax returns to Ober. It turned out that the IRS
had audited the magazine's corporate returns, as well as the personal returns of
publisher Edward Keating, for the tax years 1960-64. Keating, a philanthropist
in the 70 percent tax bracket, had been deducting the magazine's annual deficit
from his personal taxes. A CIA officer analyzed the tax data and noticed an
apparent discrepancy overlooked by the IRS. While Keating was claiming all of
the losses, which were in the range of $450,000 a year, five others, including
Hinckle, also owned stock in the magazine. The IRS advised the CIA it intended
to check out this discrepancy. Ober by now had a fairly clear picture of the
financial situation at Ramparts. One of Ober's men had filed the following
report: "Keating's wife, the former Helen English, had a substantial personal
estate (derived from family interests in U.S. Gypsum) from which came the
capital funds which provided the wherewithal for the operations of Ramparts.
They have been liquidating this estate steadily over the years and by 1965, it
was completely gone. Examination of bank statements and capital transactions
confirmed this source of funds."
The bad news for Ober was that none of his men could turn up any foreign
funding of Ramparts. Without any evidence of foreign influence over the
magazine, Ober was legally barred by the 1947 National Security Act from further
pursuit of the Ramparts staff. Instead of halting the operation against
Ramparts, however, Ober went on the offensive. On the same day he got the IRS
tax data on Ramparts, Ober circulated a memo discussing "certain operational
recommendations." While the CIA continues to withhold the full story of what
Ober had in mind, this much has been discovered: news stories meant to discredit
Ramparts were to be planted. CIA officer Louis Dube would later admit, somewhat
cryptically, that Ober's operational recommendations involved "articles that
would appear in other media." In fact, Ober planned a propaganda campaign
against Ramparts.
Ten days later, the campaign began. A story presumably planted by the CIA was
widely syndicated in newspapers such as the Washington Star. The story was
written by Carl Rowan, former director of the United States Information Agency.
Now a national columnist, Rowan implied that Ramparts's exposes were
Communist-inspired:
A few days ago a brief, cryptic report out of Prague, Czechoslovakia, was
passed among a handful of top officials in Washington. It said that an editor of
Ramparts magazine had come to Prague and held a long, secret session with
officers of the Communist-controlled International Union of Students.
Ramparts is the magazine that exposed the fact that the Central Intelligence
Agency has been financing the National Student Association, which in turn has
worked for several years to prevent the International Union of Students from
dominating the youth of the world.
The Prague report aroused deep suspicions here among officials who are
privately shocked and dismayed at the damage to the CIA and to U.S. foreign
policy interests caused by the needless series of busted intelligence "covers"
that has resulted from the Ramparts expose.
What, if any, relationship does Ramparts have to the IUS?
At Langley, a CIA officer summarized Rowan's article in a memo. That memo is
still secret. To release it, the CIA contends, would reveal a CIA "method."
Rowan refused to discuss the matter at the time.
On March 4, 1967, Richard Ober got a report from a person who attended a
Ramparts staff meeting at which magazine reporters had discussed their
interviews of high executive branch government officials and their attempts to
meet with White House staff members. Now Ober knew who was saying what to whom.
Three days later, Ober's task force found out that a Ramparts reporter was going
to interview a CIA "asset": that is, someone under CIA control. In preparation,
CIA officers told the asset how to handle the reporter, and after the interview
the asset reported back to the CIA.
On March 16, two of Ober's men drove from CIA headquarters to a nearby
airport to pick up a CIA agent who was a good friend of a Ramparts reporter.
They went to a hotel, where the CIA agent was debriefed. Then the agent and his
case officers reviewed his cover story, which he went on to tell his Ramparts
contact as a means of obtaining more information. During the same period Ober
was trying to recruit five former Ramparts employees as informants. "Maybe they
were unhappy," a CIA agent would later explain. On April 4, Ober completed a
status report on his Ramparts task force. His men had identified and
investigated 127 Ramparts writers and researchers, as well as nearly 200 other
American civilians with some link to the magazine.
Three more CIA officers joined Ober's team, bringing to twelve the number of
full-time or part-time officers coordinating intelligence and operations on
Ramparts at the headquarters level. On April 5, 1967, the task force completed
its tentative assessment and recommendations, setting forth future
actions--which, the CIA was still insisting in 1994, cannot be released under
the Freedom of Information Act. CIA officer Louis Dube described the
recommendations as "heady shit" but refused to be more specific.
It is known that Ober became fascinated with Ramparts advertisers. "One of
our officers was in contact with a source who provided us with information about
Ramparts's advertising," Dube admitted. On April 28, a CIA analyst working for
Ober tried to learn if the CIA had any friends who might have influence with
Ramparts advertisers, apparently with the intention of getting them to drop
their accounts.
----
Richard Ober, acutely aware that the scandals exposed by Ramparts were
symptoms of a leaky secrecy system, took pains to protect his own operation from
similar leaks. Indeed, Ober knew that any publicity about his work would
generate a much bigger scandal. The twelve men working with him on the operation
were his primary concern. Even though he expected them to maintain their
silence, he reinforced this expectation by relying heavily on secrecy contracts.
In secret testimony Ober would later explain, "Those [secrecy] agreements were
signed by everybody exposed to my project at headquarters."
Eventually, the failure to have Michael Wood sign a secrecy agreement meant the
CIA had to sever its ties to the National Student Association. The instrument of
this divorce was a settlement drafted by the CIA chief counsel. On August 11,
1967, the CIA signed over to the student association the title to a building at
2115 and 2117 S Street, N.W., Washington, D.C., which the CIA had owned.
However, the building was heavily mortgaged, and after the CIA stopped paying
the debt, the payments bled the student treasury for many years. The National
Student Association changed its name to the United States Student Association
but never fully recovered its reputation. American students, unlike their
European counterparts, are for the most part still without an effective
organization to lobby their national legislature, the Congress.
In response to President Johnson's rising anxiety about Vietnam, CIA interest
in the dissident press dramatically expanded in the summer of I967. In July,
Director Helms appointed Thomas H. Karamessines, an admirer of Helms, one of
four deputy directors in the Agency. As deputy director of operations,
Karamessines was in charge of all espionage, counterespionage, and covert action
worldwide-including, of course, such activities within the United States.
Karamessines's twenty-three years in the CIA had included, most recently, the
top job in foreign intelligence. He began as a desk officer in Greece at the end
of World War II, when Greece was a focal point in the developing cold war. He
did similar duty in Vienna and Rome, attended the prestigious National War
College in the mid-I950s, and later was deeply involved in often deadly
operations to bring down nationalist leaders such as Salvador Allende, Che
Guevara, Fidel Castro, and Patrice Lumumba.
Less than a month after Karamessines was promoted, he started an operation to
handle the antiwar press. The new campaign was evidently sprung on August 4,
I967, when a "telegram [went out] to a great many field stations talking about
high level interest in this activity," according to Richard Ober, in testimony
before the Rockefeller Commission years later. The new operation, called Special
Operations Group (SOG), was to be part of counterintelligence, and as such in
the domain of the counterintelligence chief, James Jesus Angleton, then working
under Karamessines. When Angleton learned of the new group, he was also given
the names of two candidates to head it. He chose Ober.
On or about August I,, Angleton called a small meeting to announce Ober's new
title and responsibilities. Ober's job was to coordinate SOG and expand his
Ramparts investigation to encompass the entire antiwar underground press,
numbering some five hundred newspapers. He was to use the same plausible
denial-"foreign funding"-that was used to justify the Ramparts operation. The
special operation was later designated MHCHAOS: "MH" for the worldwide area of
operations, "CHAOS" for, well, chaos. The Ramparts Task Force had been "high
priority." MHCHAOS was above that: "operational priority in the field is in the
highest category, ranking with Soviet and Chinese" operations. In twenty years,
from I947 to I967, the CIA had moved from forswearing internal security
functions to assigning domestic political espionage the highest level of
priority.
p29
The underground press was the spinal column of the antiwar movement. In
California, Max Scheer had founded the Berkeley Bar/o on Friday, August I3,
I965. The front page of the Barb's first issue had a report on antiwar
demonstrators attempting to stop a troop train carrying soldiers to a deployment
point for Vietnam. Subsequent issues contained regular reports from the front
lines of the movement. Barb's staffers left their offices on Friday afternoons
to hawk papers on street corners. Circulation grew to 85,000 copies a week. In
Washington, D.C., the Washington Free Press distributed antiwar polemics on the
streets outside the White House and the State Department. One of the Free Press
editors was Frank Speltz, a white student at predominantly black Howard
University. He had started the paper as a newsletter meant to carry civil rights
news to nearby white campuses, but he then broadened its focus to include
reporting on antiwar demonstrations. In Chicago, Los Angeles, Atlanta, San
Francisco, and New York, similar papers sold for twenty-five cents a copy. By
I967, there were hundreds of antiwar, counterculture newspapers-some of them in
towns as small as Grinnell, Iowa, and Lubbock, Texas. They had their own news
service, the equivalent of an underground Associated Press. Their combined
circulation would peak at seven million a month. In conjunction with the campus
press, the underground press was a mighty antiwar propaganda machine.
The CIA was not alone in its mission. Ober coordinated efforts with agents of
the army, the local police, and the FBI. At the U.S. Army Intelligence Command,
Ralph Stein was assigned to a similar underground newspaper desk. Stein soon
figured out that antiwar publications were being financed by change collected on
the street, not by the KGB or the Chinese secret service. When Stein was called
from his office to brief Ober's team at CIA headquarters, he was shocked to find
that the CIA officers had knowledge about the lives of underground editors so
intimate that it could only have come from infiltrators. Concerned that Ober's
task force was operating in violation of the I947 National Security Act, Stein
returned to his office and registered an official objection with his commanders.
The next thing he knew, he had been relieved of his liaison duties with the CIA.
In some respects Ober was a fugitive within his own agency, but the very
illegality of MHCHAOS gave him power. Because he had been ordered to carry out
an illegal mission, he had certain leverage over his bosses, as long as he kept
his operation secret. Indeed, he had leverage over not only Karamessines but
also CIA Director Helms, as well as anyone at the White House and the National
Security Council who received his domestic intelligence reports. In time these
would include Henry Kissinger and Nixon's counsel, John Dean. Ober was a man
walking on the edge of a razor. As long as everything remained secret, he was
not only safe but powerful: he had the ear of presidents.
With Richard Nixon in the White House, the demands on Ober for more political
espionage became louder and clearer. Ober's sixty agents became the Nixon
administration's primary source of intelligence about the antiwar leadership.
Bush
Perfects the Cover-up
p42
In March 1972, a typescript of an article and a
related book proposal were purloined by a CIA agent from a New York publisher
and forwarded to Langley. For Richard Ober, the manuscript was right out of a
bad dream. A former senior CIA official, Victor Marchetti, was planning to write
a book exposing CIA deceptions. Marchetti had been the executive assistant to
the deputy director of Central Intelligence and had attended regular planning
and intelligence meetings attended by Richard Helms. He had also been a courier
for the Agency group that approves covert operations. The most carefully guarded
CIA information was called Sensitive Compartmented Information, or SCI, and was
distributed to officials strictly on a need-to-know basis. But his position had
allowed Marchetti an overview of the Agency purposely denied to most CIA
officers.
Over time, Marchetti had become troubled by
the Agency's role in the overthrow of democracies on behalf of dictators and by
CIA manipulation of other nations' internal policies. He saw evidence of
corruption in overseas operations. Marchetti's intellectual honesty was also
offended by intrigue inside CIA headquarters that disrupted the accuracy of
intelligence estimates. Furthermore, the Vietnam War had disillusioned Marchetti,
whose sons would soon reach draft age. And when Eagle Scouts from a troop he
served as scoutmaster began dodging the draft, Marchetti began to feel his CIA
job was isolating him.
Upon quitting the Agency at age thirty-nine,
after a highly successful fourteen-year career, Marchetti wrote a novel called
The Rope Dancer. Prior to its publication by Grosset and Dunlap in I97I, a CIA
officer read a version of the manuscript at Marchetti's home, in keeping with
the rules set out in the CIA secrecy contract Marchetti had signed. The CIA
officer found no security breaches, and publication went forward.
What troubled Ober and Ober's immediate
supervisor, Thomas Karamessines, was one particular line in the novel.
Marchetti's central character is speaking with jaundiced anger about the
fictional CIA: "Somebody should publicize the Agency's mistakes." Suppose
Marchetti got it in his head to write about MHCHAOS? Concerned, Helms himself
ordered Marchetti placed under surveillance beginning on March 23, I972.
Within days, an article written by Marchetti
appeared in the April 3 Nation under the headline "CIA: The President's Loyal
Tool." Marchetti wrote that the CIA was using the news media to create myths
about the Agency and was fooling such influential publications as the New York
Times and Newsweek. Additionally, he claimed, the CIA had continued to control
youth, labor, and cultural organizations in the United States, notwithstanding
the scandals triggered by the report in Ramparts. Marchetti also castigated
Helms for spending too little time engaged with the intricacies of intelligence
analysis, satirically calling him a "master spy" who conducted his most
important weekly meetings in less than twenty minutes. Marchetti concluded:
"Secrecy, like power, tends to corrupt, and it will not be easy to persuade
those who rule in the United States to change their ways."
p48
Even while MHCHAOS was surviving the Marchetti scare, the CIA inspector general,
an internal cop, was the focal point of a second emergency. Worried that the
inspector general might discover MHCHAOS and expose it, Helms called in Colby,
Ober, and Karamessines for a meeting on December 5, I972. Helms emphasized the
importance of running a cleaner, less dubious-looking operation. There was a
need to proceed cautiously, he said, to avoid a showdown with "some CIA
personnel." Nonetheless, Helms was adamant that MHCHAOS not be abandoned. It
will not be "stopped simply because some members of the organization do not like
this activity," he insisted.
Helms cautioned Ober against attending
meetings of the Justice Department Intelligence Evaluation Committee, because
security was lax and its role in domestic politics might lead investigative
reporters to MHCHAOS. Helms had come up with a solution to the problem of CIA
officers who doubted the legality of MHCHAOS. Henceforth, it would be described
within the Agency as an operation against international terrorism. "To a [sic]
maximum extent possible, Ober should become identified with the subject of
terrorism inside the Agency as well as in the Intelligence Community," Helms
ordered. Afterward, Colby sent Karamessines a summary of the meeting: "A clear
priority is to be given in this general field to the subject of terrorism. This
should bring about a reduction in the intensity of attention to political
dissidents in the United States not apt to be involved in terrorism." The change
in label was evidently intended to improve the Agency's image and cover, on the
assumption that "terrorists" were more believable as a genuine threat than
"dissidents."
But there was in fact to be little change in
targets. MHCHAOS continued to hold radicals in its sights, specifically radical
youths, Blacks, women, and antiwar militants. The label "international
terrorist" was designed to replace "political dissident" as the ongoing
justification for illegal domestic operations. And in the final move to clean up
Ober's act, in December Helms put an end to the operation of the five-year-old
MHCHAOS by formally transforming it into the International Terrorism Group-with
Ober still in charge.
Only seventeen days later, Helms and
Karamessines announced their resignations from the CIA. Nixon named James
Schlesinger to replace Helms as director, and Schlesinger in turn replaced
Karamessines with Colby as deputy director for plans. In a euphemistic change,
Schlesinger and Colby renamed the Directorate for Plans as the Directorate for
Operations, which was the CIA's way of saying, "Let's call domestic spying a
response to terrorism."
p53
One of the most productive agents, Sal Ferrera, was at this stage operating
overseas, where his targets were Americans. Upon first landing in Europe in the
summer of I97I, Ferrera had moved fast. He was in Zurich on July 7 and in Rome
on July I,. In September he was in Copenhagen, spying on peace activists who
were involved in an underground railroad for U.S. GIs who had deserted because
of qualms over Vietnam. Ferrera then based himself in Paris, site of the
Vietnamese embassies, where unofficial and official peaceseekers from the United
States and Vietnam were trying to negotiate an end to the war. In his nice guy
role, Ferrera sought out and befriended Americans sympathetic to the peace
effort. He introduced himself to the five-member youth contingent attending the
Versailles Peace Assembly, an international conference of antiwar activists.
Ferrera's cover was the same as it had been
in the United States, that of a leftist journalist. College Press Service
distributed his writings to its U.S. campus subscribers. In one article, Ferrera
wrote about German radical political groups and the divisions between them.
Another article, syndicated by the Alternative Features Service to underground
newspapers in the United States, was headlined "Just Another Day in Derry" and
analyzed the ideological conflicts within the Irish Republican Army.
Ferrera had proved adept at penetrating the
CIA's political opponents in the United States. He was well established as a
MHCHAOS star. But his new assignment was his most sensitive yet. He was to
befriend former CIA officer Philip Agee, who was writing a book filled with one
CIA secret after another-revealing far more than those divulged by Sheinbaum,
Wood, Marchetti, and McCoy put together. Because Agee had served as a CIA case
officer on the streets in South America, he had been privy to more intelligence
work than the office-bound Marchetti. But, like Marchetti, Agee had grown
disenchanted, responding to a general cultural wave of doubts about the U.S.
imperial role in Vietnam. Agee had moved to Paris, out of the reach of U.S.
courts. In France, the CIA could not enforce the secrecy contract Agee had
signed.
Living in the same expatriate community,
however, was Ferrera, who began to frequent the Paris cafe Le Yams, where Agee
often sipped coffee and socialized. Ferrera introduced himself as a reporter for
College Press Service. Once he had become a familiar fixture at the cafe,
Ferrera introduced Agee to a young woman he invitingly described as an
"heiress." Agee had spent all his savings while at work on his book and was
desperately poor. When the woman expressed an interest in financing him while he
finished the book, Agee allowed her to read the unfinished manuscript over a
weekend. She responded with enthusiastic support, giving Agee enough money to
see him through several months of writing.
Of course, Ferrera now had the perfect
rationalization to see Agee's manuscript at any point. As Agee grew more and
more dependent on Ferrera, he began using Ferrera's address as his own. One of
the letters that came to Ferrera's apartment was from Agee's father, and it
described CIA Counsel John Greaney's visit to the Agee family home in the United
States. Greaney had given Agee's father a copy of his son's secrecy contract,
along with a copy of the recent Marchetti court decision.
Ferrera also apparently arranged a typewriter
swap, allowing him to introduce into Agee's apartment a portable Royal
typewriter and a case crammed with microphones and transmitters. Agee soon
discovered the surveillance device and had it photographed; eventually the photo
of the bugged typewriter would appear on the cover of his book. In the meantime,
though, Ferrera had learned that Agee was about to identify CIA operatives in
South America. This advance notice enabled the Agency to move the operatives, as
well as to take preventive measures to reduce the embarrassment from a host of
other stories in Agee's book.
The book itself, Inside the Company: CIA
Diary, was published in I975 without prior censorship. In a twenty-two-page
appendix, Agee named scores of individuals and organizations controlled,
supported, or used by the CIA. Agee had by this time realized that Ferrera was
an undercover operative, and Ferrera's name was included in the appendix, linked
to the impressively wired typewriter case pictured on the cover. The book jacket
excerpted a Washington Post reference to Marchetti's blank-filled book and
boasted, "There are no blanks in Philip Agee's." Seizing on the Agee case, CIA
officials in Washington began to agitate for a law to imprison anyone who
publicly identified intelligence agents.
***
Amid the numerous scandals of the Nixon
administration and under particular pressure from partisans of Ralph Nader,
Congress was moving toward a new openness. Amendments to strengthen the I966
Freedom of Information Act were drafted. The FOIA had been reduced to near
uselessness by bureaucratic intransigence and judicial refusals to restrain
executive secrecy. The U.S. Supreme Court, in deciding the I973 FOIA case
Environmental Protection Agency v Mink, had said the courts should not be
allowed to inspect classified national security records unless Congress directed
otherwise. By rejecting judicial review, the Supreme Court had in the Mink case
adopted basically the same line of reasoning as had Chief Judge Haynsworth in
the Marchetti case.
In the fall of I974, however, Congress
amended the FOIA to reverse the Mink decision. The main proponents of the
amendment were Edward Kennedy in the Senate and John E. Moss in the House. The
amendment explicitly authorized federal judges to inspect classified records in
chambers in order to determine whether the government was warranted in
withholding them from public release. In addition, Congress added teeth to the
FOIA in several other ways. In the future, the government would have to prove
why secrecy was necessary for each specific case. Government agencies would have
to publish indexes identifying information that had been made public, as a means
of assisting citizens in locating government documents. And the fees charged to
citizens for copies of government records, which sometimes were prohibitively
high, could be waived under a new range of circumstances, thus ensuring that
fees could not be used as barriers to disclosures. Bureaucratic delays in the
release of data also were sharply curtailed. A new deadline of ten working days
was imposed on the government for all FOIA requests. In a case in which the
government denied a request, a twenty-day appeal period was established, after
which the case could be taken to court.
The CIA would spend the next two decades
fighting the release of documents to citizens who requested them under the FOIA.
For CIA officials, whose lives were dedicated to secrecy, the logic behind the
checks and balances of the three-branch system of government may have been
incomprehensible. The idea that federal judges not trained in espionage could
inspect CIA files and even order their release was enough to curdle the blood of
secret operatives like Richard Ober. CIA officers felt that neither Congress nor
the courts could comprehend the perils that faced secret agents. Their
instinctive reaction, therefore, was to find any avenue by which they could
avoid judicial or journalistic scrutiny.
A month after Congress enacted the new FOIA
amendments, someone at the CIA leaked the news of MHCHAOS to Seymour Hersh at
the New York Times. Hersh's article appeared on the front page of the December
22, I974, issue under the headline "Huge C.I.A. Operation Reported in U.S.
against Antiwar Forces, Other Dissidents in Nixon Years." Although sparse in
detail, the article revealed that the CIA had spied on U.S. citizens in a
massive domestic operation, keeping 10,000 dossiers on individuals and groups
and violating the I947 National Security Act. Hersh reported that intelligence
officials were claiming the domestic operations began as legitimate spying to
investigate overseas connections to dissenters.
Gerald Ford, who only four and a half months
earlier had assumed the presidency in the wake of Nixon's resignation, took the
public position that the CIA would be ordered to cease and desist. William
Colby, who had replaced James Schlesinger as CIA director, was told to issue a
report on MHCHAOS to Henry Kissinger. Apparently Ford was not informed that
Kissinger was well aware of the operation. A few days later, after Helms
categorically denied that the CIA had conducted "illegal" spying, Ford named
Vice President Nelson Rockefeller to head a commission that would be charged
with making a more comprehensive report. Ford's choice of Rockefeller to head
the probe was most fortunate for Ober. Rockefeller was closely allied with
Kissinger, who had been a central figure in the former New York governor's I968
presidential primary campaign. Although Rockefeller was well regarded in media
and political circles for his streak of independence, it was all but certain
from the beginning that his report would amount to a cover-up.
p64
A continuing series of scandals had eroded the CIA's public credibility. In
November I975, Frank Church's Senate committee reported that the CIA had tried
to assassinate Cuban leader Fidel Castro and had engineered the murder of
Patrice Lumumba, the prime minister of the new Republic of the Congo. The Church
Committee also contradicted the sworn testimony of Richard Helms by revealing
that the CIA had helped engineer the I973 coup in Chile. Moreover, several
former CIA operatives-Victor Marchetti, Philip Agee, and Stanley Sheinbaum-had
joined the CounterSpy advisory board to help consolidate the outside pressure
against the CIA.'
The CIA was not without resources, of course.
In I975, former CIA officers, including David Atlee Phillips, organized the
Association of Retired Intelligence Officers to undertake a public relations
campaign to enhance the Agency's image. Phillips also operated behind the
scenes. He told Marchetti, whose name was on the CounterSpy masthead, "Get your
name off. We're going to land on them." Marchetti respected the CIA's power and
took the warning to heart. He withdrew from the magazine and talked others into
leaving with him.
Just before Christmas I975, a tragedy had
provided an opportunity to shift the scrutiny away from the CIA scandals. In
Athens, Greece, the CIA chief of station Richard Skeffington Welch was
assassinated on December 23, gunned down as he returned to his house from a
party at the U.S. ambassador's residence. His death focused attention on the
danger inherent in publishing the names of CIA agents. Welch had been identified
as a CIA officer in a letter to the editor published by the Athens News a month
earlier on November 25. The letter, signed by the "Committee of Greeks and Greek
Americans to Prevent Their Country, Their Fatherland, from Being Perverted to
the Uses of the CIA," denounced the CIA for its role in the installation of a
reactionary Greek government. While Welch's assassins most likely learned about
his CIA affiliation from this letter (or from his decision to live in an Athens
house well known as a CIA residence), most of the blame for his death was aimed
at CounterSpy, which also had printed Welch's name.
In the midst of the Senate vote to confirm
George Bush in January I976, intelligence officials were making no secret of
their outrage over Welch's death and their fury at CounterSpy. A well-known
reporter told editor Tim Butz that his own life had been threatened by angry
former intelligence officers, and Butz began to carry a gun. Members of the New
York intelligentsia, who had been drawn to CounterSpy by Norman Mailer, began to
keep their distance. It was unseemly to be contributing money to a magazine
accused of having blood on its hands.
Even though CIA critics were put on the
defensive by the Welch assassination, it did not take Bush long to appreciate
that he had his work cut out for him when it came to casting the Agency in a
positive light. Less than a month after taking over, he had to answer questions
about a report by the House Select Committee on Intelligence. Although the House
had voted to suppress the report at President Ford's request, someone leaked it.
The whole report, known as the Pike Report after U.S. Representative Otis Pike,
Democrat of New York, was reprinted in the Village Voice issues of February I6
and z3, I976.
The Pike Report was shocking because it
provided the first official overview of CIA excesses: the Agency ran large
propaganda operations, bankrolled armies of its own, and incurred billions in
unsupervised expenses. The report revealed that top CIA officials had tolerated
cost overruns nearly 400 percent beyond the Agency budget for foreign operations
and 500 percent beyond the budget for domestic operations, for years concealing
their profligacy from Congress. The CIA also was said to have secretly built up
a military capacity larger than most foreign armies; the CIA and FBI between
them had spent $I0 billion with little independent supervision. Further, the
CIA's single biggest category of overseas covert projects involved the news
media: it supported friendly news publications, planted articles in newspapers,
and distributed ClA-sponsored books and leaflets. The phony CIA dispatches had
often found their way into domestic news stories, thus polluting with
inaccuracies the news received by Americans.
p147
Soon after Reagan's second inauguration, he
appointed Bush to chair a cabinet-level Task Force on Combating Terrorism. With
this mandate, Bush set out not only to narrow congressional oversight of the CIA
and to pass new secrecy laws but also to use terrorism as a justification for
domestic spying against left-wing citizen groups that had lobbied Congress to
ban Contra funding. That this task force was a cover is clear from its own
statistics, which showed domestic terrorism in sharp decline just as Bush was
ostensibly cranking up his force to fight it. The number of terrorist incidents
reported in the United States fell off sharply from twenty-nine in I980 to only
seven by I985, with a high of fifty-one in I982. Nevertheless, the
thirty-four-page Public Report of the Vice President's Task Force on Combating
Terrorism of I986 recommended that the intelligence agencies involve
"conventional human and technical intelligence capabilities that penetrate
terrorist groups and their support systems."
In an accompanying cover letter, Bush
self-consciously tried to explain away the inconsistency between his orders to
"improve America's capability for combating terrorism" and FBI reports that
domestic terrorism was virtually nonexistent, arguing that terrorism being waged
in foreign countries posed "the potential for future problems . . . here at
home.'' Moreover, the report shifted the ground of the debate by describing
terrorism as "political theater designed to undermine or alter governmental
authority or behavior." This was a radically new definition. Political theater
aimed at altering governmental behavior is an American tradition that started
with the Boston Tea Party and has long since been protected by the First
Amendment.
Following recommendations from Bush's task
force to increase the overall surveillance of terrorists, the FBI conducted
8,450 domestic terrorism investigations in I986, even though they reported only
seventeen actual terrorist incidents that year. Much of the difference between
the two figures can be explained by the fact that the FBI was conducting
political spying under the "terrorism" label. According to FBI documents later
released through FOIA requests, the prime targets of these so-called terrorist
investigations were those groups advocating the congressional ban on Contra
funding. The CIA used a similar strategy when covering up MHCHAOS: domestic
political operations are more easily defended if they are labeled as
anti-terrorism.
Some FBI special agents were not willing to
pursue wholesale spying against U.S. citizens. In Buffalo, New York, agents took
the unprecedented action of refusing to conduct the political investigations
ordered by headquarters. In a few instances, the executive assistant director of
the FBI, Oliver "Buck" Revell (who was also a member of Bush's terrorism task
force), overrode the FBI agents' objections and ordered the investigations to
continue.
An even larger problem for Bush's task force
was finding a way to keep secrets from journalists. Indeed, there were already
problems with exposure. Reporters were beginning to write about some FBI
political spying for the White House that had occurred in I984. Syndicated
columnist Jack Anderson reported that the FBI was spying on peace groups. It
became known that in I982 the FBI had conducted an "administrative" probe of the
Physicians for Social Responsibility, a worldwide group of doctors whose
campaign for a nuclear weapons freeze at the international level was awarded a
Nobel Peace Prize in I985. FBI Assistant Director William Baker admitted to me
in the mid-I980s that FBI informants had been used inside the group.
Intent on improving secrecy, Bush's task
force attacked the FOIA- particularly the I974 amendments, which had been a
vehicle for exposing Nixon's political intelligence operations. Among the
recommendations in the report was the repeal of these post-Watergate reforms on
the grounds that terrorists might be using the FOIA. It was a wholly speculative
argument, as the recommendation itself showed: "Members of terrorist groups may
have used the Freedom of Information Act to identify FBI informants, frustrate
FBI investigations, and tie up government resources in responding to requests.
This would be a clear abuse of the Act that should be investigated by the
Department of Justice and, if confirmed, addressed through legislation to close
the loophole" (emphasis added).
The truth was that the task force's concern
with the FOIA had little to do with terrorism but much to do with political
spying. By the end of I986, this emphasis on spying was causing a growing
rebellion within the FBI's usually well-disciplined ranks. Special Agent John C.
Ryan, a twenty-one-year veteran from Peoria, Illinois, flatly and repeatedly had
refused FBI orders to conduct a "terrorism" investigation of anti-Contra
protesters whom he knew to be religious pacifists. As a result, Ryan was fired
for insubordination on August 25, I987, eighteen months after Bush's task force
issued its report. Ryan was the first FBI agent fired for refusing to obey
orders as a matter of conscience.
p151
As Congress raced toward adjournment, the FOIA amendment was hurriedly put to a
vote. Members of Congress said aye without ever seeing a copy of what they were
voting on; there had not been enough time to print an up-to-date version of the
legislation. As one staffer for Congressman Glenn English commented in an aside
to me, "My boss was over on the floor asking, 'Who's got a copy?' " The bill
passed October I7, I986, and Reagan signed it into law. The fact that the
legislation was the handiwork of Bush's task force went essentially unnoticed.
And to make matters more confusing, some journalists got it wrong. The
Washington Post, for instance, reported that the FOIA amendment had not been
enacted.
Given this level of misinformation, there was
little opportunity to fully assess the political implication. Few journalists
understood that the FBI would now be able to withhold files that had nothing to
do with the enforcement of laws, such as those dealing with political spying
operations. Attorney General Edwin Meese III, whose job it was to implement the
new FOIA amendment, reported that it "established important new records
exclusions"-a different story than the one told by the ACLU. The amendment
shielded "more routine monitoring," said Meese. Under it, the FBI could keep
secret all kinds of data, not just "specifically focused law enforcement
inquiries." Almost gleefully Meese advised the FOIA supervisors to "be mindful
of the greater latitude": documents could be treated "as if they did not exist."
Most important, the FBI could now largely exclude secret counterintelligence or
international terrorism files from public and judicial review, so long as the
operation was so secret that its very existence was classified.
Most journalists missed the significance of
the new amendment because they were taking their cues from Halperin, but one who
saw through the smoke screen was Scott Armstrong, a former Washington Post
reporter who had founded the National Security Archive-a privately funded group
that collects, indexes, and circulates government documents released under the
FOIA. Armstrong tried to make it known that the amendment allowed terrorism and
counterintelligence files to be kept secret forever, but his efforts were to
little avail.
Another part of the new FOIA amendment
permitted the government to seek the dismissal of pending FOIA lawsuits. During
the slam-bang passage of the legislation, no one in Congress had thought to
remove this ex post facto section, and in equally hasty fashion the Justice
Department moved to dismiss FOIA cases just days after the final vote. U.S.
District Judge Thomas Flannery subsequently interpreted the law exactly contrary
to Halperin's intention. Flannery cited "the newly amended statute, and the
broader category of information that is protectable" in blocking the release of
documents related to the assassination of President Kennedy.
The Justice Department attorney assigned to
take advantage of the new FOIA amendment was Richard Willard. He lost no time in
using the amendment to fend off a class action lawsuit brought by, among others,
Frank Wilkinson in California. Wilkinson had sued the FBI in I980 for documents
about himself and his organization, the Committee to Abolish the House
Un-American Activities Committee, founded in the I960s. Members of the House
Un-American Activities Committee, who had a close relationship with FBI Director
J. Edgar Hoover, cited informers who said Wilkinson was a Communist. On that
basis the FBI had amassed more than I30,000 pages of documents concerning him
and his associates. Wilkinson was asking to see those files under the FOIA, but
so far all he had obtained from the FBI were heavily censored copies.
Richard Criley, an elder statesman among
California's civil libertarians, had inspected the I30,000 pages, threading his
way around the blacked-out words, and had constructed a cross-reference file. He
concluded that the documents would prove that the FBI had done the following:
disrupted meetings at which Frank Wilkinson
was to speak
manipulated the news media to discredit
another organization founded by Wilkinson, the National Committee Against
Repressive Legislation (formerly the National Committee to Abolish the House
Un-American Activities Committee)
prepared "poison pen" letters against the
group
intervened illegally in the legislative
process
disrupted the organization through the use of
informer/agent provocateurs
sabotaged fund-raising
According to Criley, "the entire operation of
the FBI was focused on 'discrediting' and 'disrupting' the organization by
illegal means and could not be considered 'law enforcement' by the furthest
stretch of the imagination.
Now Wilkinson, represented by attorneys from
the Southern California ACLU affiliate, was petitioning the federal courts to
compel release of the information that had been blacked out. Three days after
Reagan signed the FOIA amendment, however, Willard invoked it to block further
release of the files. He argued that the goal of the FOIA amendments was to
frustrate the efforts of people like Criley "who have both the incentive and the
resources to use the act systematically-to gather, analyze, and piece together
segregated bits of information obtained from agency files." He accused Criley of
having already put together apparently innocuous information to reveal the
identity of at least one FBI informant.
"It's true," Criley said. "I did identify an
informant who was dead . . . the guy was an officer of NCARL reporting to the
FBI." And by authority of the new amendment, the presiding judge in the
Wilkinson case ruled that the relationship of an informer to the Bureau can be
kept secret in perpetuity, even after the informant's death.
In one hard-fought case, however, the
persistence of Ann Marie Buitrago, chairwoman of a group called Freedom of
Information and Accountability, together with Michael Ratner of the New
York-based Center for Constitutional Rights, led to the release of thousands of
pages of the FBI file on the Committee in Solidarity with the People of El
Salvador. CISPES had opposed U.S. intervention in Central America. While many
portions of the file were censored, the documents revealed that under the
heading "terrorism matter," CISPES and more than two hundred other anti-Reagan
groups had been targeted by the FBI. Investigations had been carried out by
fifty-two of the FBI's fifty-nine field offices (see appendix).
Leaders of CISPES held press conferences
simultaneously in five cities to call attention to the FBI's massive political
operation. In response to the publicity, FBI Director William S. Sessions denied
that the operation was ordered by the White House or was politically motivated.
He claimed that it began as a "reasonable examination of a possible terrorist
threat." However, Sessions was compelled to concede that the FBI found "no
substantial link between CISPES and international terrorism," and in an
extraordinary move he disciplined six FBI agents for their role in the scandal,
suspending some without pay for two weeks.
In the wake of the CISPES disclosures,
Congressman Don Edwards ordered the General Accounting Office to inspect
politically motivated FBI "terrorism" investigations into peaceful dissenters
opposed to U.S. foreign policy in Central America. But the GAO was stymied by
the FBI and not allowed to inspect Bureau files for their political content.
Instead, the GAO had to be satisfied with responses to questionnaires, which
were filled out by FBI agents themselves. Even so, the GAO did discover that the
FBI had obtained information on lawful activities in many of the I8,I44 FBI
international terrorism cases between January I982 and June I988.
"Terrorism incidents are down, and hype is
up," said one congressional staffer with FBI oversight responsibilities. "There
was a concern that administration policy was undercut by domestic opposition
groups. It was necessary to discredit and disrupt those groups. There was
interest in the investigation of those groups. It was thought they could be
disrupted by arrests. There was at the time a sincere belief that there was a
link between political opposition and illegal activity."
A House investigator specializing in the FBI
observed, "The only way, the best way, for Congress to learn about FBI political
investigations is with the aggressive use of the FOIA. In past years,
congressional oversight of the FBI could not function without FOIA. Did the
changes in the FOIA adversely affect congressional oversight? Yes. Definitely."
William H. Webster, who had moved laterally
from FBI director to CIA director, admitted that the FOIA amendment helped
agencies maintain the secrecy of classified covert operations. "[The laws] have
been made a little more reasonable in protecting sources and methods," Webster
said. "That's what it's all about." With the curbing of the FOIA's application
to the FBI and the CIA, the Reagan administration's secrecy program continued to
roll along in high gear. At the Pentagon, however, the secrecy program ran into
one man who stood up and organized a political counterattack.
At age fifteen, A. Ernest Fitzgerald followed
his fathers footsteps, working as a pattern maker, an exacting craft in the
making of precision tools for mass production, in Birmingham, Alabama. His
father taught Fitzgerald to work to the closest possible tolerances, produce his
products for a reasonable price, and deliver them on time. "Nothing was wasted
at my father's shop," he says. With an American Foundryman's scholarship he
obtained a bachelor's degree in industrial engineering and took a job as a
quality control engineer in an aircraft factory. Later, he started his own
consulting business in cost and quality control analysis for the government and
for large corporations with military contracts. In I965 the air force gave
Fitzgerald a position in procurement cost control for some of its systems, with
a mandate to find savings. His boss, the assistant secretary of the air force,
gave him a large office on the fifth floor of the Pentagon. He had taken a large
cut in pay to work for the government, but, he says, "I thought I could do some
good. I thought-before I wised up-that if the top guys knew about waste, they'd
want big changes made.
Within a year, Fitzgerald was ready to
suggest specific cuts from the Pentagon budget. At a meeting attended by
generals, high civilian officials, and defense contractors, Fitzgerald attacked
the Pentagon's unscientific system of estimating costs. Contractors who planned
costs to be high, he said, were able to bilk the government because the Pentagon
lacked facts about the real costs of weapons systems. He pointed out that
reducing waste in the procurement system could free up money to replace old
planes then in the air over Vietnam.
Many of Fitzgerald's listeners approved and
asked for transcripts of his talk. But before he was permitted to distribute
copies, his superiors told him he must submit the speech to a security review.
Three weeks passed, and his transcript was not returned. Finally, Director of
Security Review Charles Hinckle wrote that Fitzgerald's speech had been
"caustic" and "inappropriate," and on September 29, I966, the Office of the
Secretary of Defense suppressed the speech and ordered it to be neither printed
nor distributed.
Security review officials told Fitzgerald
that his negative comments on procurement practices might undermine public
confidence in the Defense Department, which in turn would undermine security.
From a security officer, Fitzgerald got a copy of his speech with the reviewers'
comments on it. Fitzgerald discovered that among other things the reviewers had
objected to his comments on scientific method. Among the material censored were
quotes he used from Francis Bacon, the father of the scientific method. "It had
become painfully obvious that my stand on cost control was not supported by the
powers in the Pentagon," Fitzgerald concluded.
In the interim, as part of his air force
duties, Fitzgerald visited the Lockheed plant in Marietta, Georgia, where
construction was under way on a fleet of fifty-eight giant C-5A transport
planes. Each C-5A was nearly as long as a football field, more a flying freight
train than an airplane. They were built to haul two M-I tanks over the ocean at
552 miles per hour and land on twenty-eight tires.
But the multibillion-dollar project was in
serious financial difficulty. On his second visit, after inspecting the
partially finished planes encased by scaffolding, Fitzgerald calculated that the
cost to the Pentagon would run more than $2 billion over the contract. Two years
later, when the matter of C-5A cost overruns reached Congress, Senator William
Proxmire of Wisconsin, chairman of a joint economic committee, summoned
Fitzgerald to testify. Proxmire planned to dispute testimony by the assistant
secretary of the air force for research and development, who had told Congress
that costs of the C-5As were normal. Proxmire asked Fitzgerald to submit 100
copies of a prepared statement twenty-four hours in advance of testifying, as is
usual for such appearances.
But Fitzgerald appeared without a prepared
statement and gave this explanation: "Mr. Chairman, I was directed not to
prepare a statement directly by my immediate superior, Mr. [Thomas H.] Nielsen,
the assistant secretary of the air force for financial management."
"Well, this is very troublesome to this
committee, very disturbing," Proxmire replied. "Here is a man who is well
qualified, has information of importance to Congress, nothing classified in it.
He is directed by the air force not to prepare a statement for the committee . .
. did Secretary of Defense Clark Clifford provide instructions to muzzle this
witness?"
An air force officer who accompanied
Fitzgerald tried to dodge that question, asserting that Fitzgerald was free to
respond to the senator's inquiries. Proxmire then launched into his questions,
and Fitzgerald began to make public his findings about the C-5A cost overruns,
setting the total at more than $2 billion. "The current Lockheed program . . .
could exceed its target cost by 100 percent," he said. He then described
fundamental problems with the Pentagon's procurement system. When Fitzgerald
finished his testimony, reporters swarmed around him, seeking more answers.
Flashbulbs popped. "I knew then that I was in the soup," he recalls.
The Pentagon immediately removed Fitzgerald
from any cost control responsibilities. Then, in January I969-after Frank
Weitzel, the assistant comptroller general of the General Accounting Office,
told Proxmire that the air force had refused to provide the General Accounting
Office with the current C-5A estimates-Fitzgerald was again called to testify.
Proxmire began, "I understand since your
testimony in November you have lost your career tenure, is that true?"
"I certainly do not have it today,"
Fitzgerald responded.
Proxmire asked Fitzgerald if his job loss was
the result of his unauthorized disclosures.
"In a sense, Mr. Chairman, it was. I had not
cleared the remarks I made with the secretary of the navy."
Proxmire then asked if all Fitzgerald had
done was to respond to congressional questions-a key point in the congressional
battle with the executive branch for information about expenditures.
"That is correct, and I would answer again,"
Fitzgerald said.
"Well, Mr. Fitzgerald . . . you have been an
excellent witness, and if there was a computer into which you could put courage
and integrity, you certainly would be promoted rather than have your status in
such serious and unfortunate jeopardy." Proxmire went on to chew out the air
force and issue a warning intended to protect Fitzgerald. "The air force can
say, and the armed services can say that their officials are free to speak any
time and tell Congress the facts as they see them. But it is going to be very
hard for the public and the Congress to accept that if there is any further
disciplinary action against you, Mr. Fitzgerald.''
Approximately six weeks later, the Pentagon
assigned Fitzgerald to a new job. He and his two cost-accounting experts were to
review the construction of a bowling alley and mess hall in Thailand. Fitzgerald
later recalled, "My civilian assistant found that the bowling alley project was
greatly overrun (about 300 percent).... [W]e lost that job, too." About two
months later, the subject of cost overruns hit the front pages. On December 30,
I969, an Associated Press story ran in the New York Times: "Major U.S. Weapons
Systems Costing $2 Billion More Than Original Estimates."
Fitzgerald expected to return to making money
in the private sector. Although he had sold his interest in his old consulting
firm, he contacted the firm's attorney, Alex Keyes, a well-connected New Yorker
who had previously helped Fitzgerald by referring many highpowered corporate
clients to him. "We had lunch at the Yale Club in New York," Fitzgerald
recounted. "He said he'd ask around for me. When I didn't hear from him, I
called him. He gave me some advice. 'Open a service station,' he said. 'You're
dead on the Street [Wall Street].' " Another old friend, Dick Burtner of
Goodyear Aerospace, told Fitzgerald he would loan him money, but " 'if I hire
you I'll never get Pentagon business.' "
Unable to find work in his profession,
Fitzgerald felt he had little choice but to file a lawsuit demanding to have his
old Pentagon job back. At the same time he wrote a book, published in I972,
titled High Priests of Waste. It detailed how military contractors plunder the
public treasury, how they keep auditors from finding out about high profits and
low quality, and how the waste is hidden behind a veil of military secrecy in
the name of national security.
In September I973 a federal judge ordered the
air force to reinstate Fitzgerald, but his claims for back salary and damages
were to be locked up by legal battles for years. In November I98I, when the case
finally went before the U.S. Supreme Court, one of the legal issues was whether
the executive branch enjoyed absolute immunity from suits arising from the
violation of someone's civil rights.
While Fitzgerald's suit was pending, Morton
Halperin was suing former President Nixon for wiretaps illegally placed on his
home while Halperin served on the National Security Council staff. Halperin was
afraid that the Supreme Court would rule in Fitzgerald's case that Nixon enjoyed
absolute immunity, so Halperin intervened. Halperin's lawyer, Mark Lynch, told
the court that "civil service employees, such as Fitzgerald, who are fired in
alleged retaliation for the exercise of their First Amendment rights, have no
cause of action under the First Amendment in view of the special relationship
between the federal government and its employees." Lynch also wrote in a motion
for Halperin that "the speech for which Fitzgerald was allegedly fired is not
protected by the First Amendment." This position by Halperin and Lynch presaged
their future stances as civil libertarians: government employees are not
protected by the First Amendment.
In May I984, Secretary of the Air Force Verne
Orr assigned Fitzgerald to assist Chairman John D. Dingell, the Michigan
Democrat who headed the House Energy and Commerce Committee, to help investigate
stock manipulations related to the awarding of multibillion dollar defense
contracts. Resuming his role as a cost-cutting detective, Fitzgerald traveled to
the Hughes Aircraft plant in Tucson, Arizona, where he was informed that in a
tear-down inspection, made in conjunction with an inspection of the air force's
Maverick system, the navy Phoenix missile guidance system had passed all normal
quality controls. On probing further, however, he discovered there were 2,578
defects, of which I06 were considered extremely serious. The guidance system is
a critical part of the air-launched, radar-guided, solid propellant rocket. But
the Pentagon generals did little to fix the problems, and, once again,
Fitzgerald decided that his only recourse was to make a public disclosure. As a
result, the plant was forced to shut down for six months.
Over the years, Fitzgerald had lost his dark
lean look and was now the picture of a bureaucrat, with gray trousers, gray
glasses, and gray close-cropped hair. Even his I985 Toyota GTS, a present from
his wife and kids, was gray. On May I3, I987, he arrived at his office, a much
smaller one than he used to command, and walked past the bank of five gray file
cabinets containing classified information. Each was secured by a Diebold dial
combination lock and had a small paper form affixed to the front of its drawers
on which was recorded the times of opening and closing. At 9:20 A.M. Captain
David Price walked into Fitzgerald's office. "Mr. Fitzgerald," said Captain
Price, "I have a nondisclosure form for you to sign. You must sign it or your
security clearance will be revoked." He handed Fitzgerald an envelope, turned,
and walked out of the office.
Fitzgerald took a deep breath. His security
clearance was necessary for him to do his job: he needed access to the
classified papers in his office cabinets. The sheet of paper in Captain Price's
envelope was titled "Classified Information Nondisclosure Agreement"-Standard
Form I89. The sheet was filled with thirteen paragraphs and at the top was a
space for his name: "An agreement between [space] and the United States."
Paragraph one defined what was to be kept secret- "information that is
classified or is classifiable." It was clear to Fitzgerald that any information
is classifiable, especially if it is embarrassing to the Pentagon. He might give
unclassified information to Congress, and then the generals could classify it.
Fitzgerald came to the third paragraph, an
agreement never to divulge any classified information without "written
authorization." Instantly, Fitzgerald realized this would mean he could not
divulge information to Congress about waste, fraud, and abuse if the Pentagon
classified that information as secret. He recalled that his first disclosures
about the C-5A cost overruns had been "unauthorized." He had talked to Congress
without receiving written permission. That data in his testimony had not been
classified. But were they classifiable?
Fitzgerald kept reading. The contract forbade
"direct or indirect" disclosure. What if he told Congressman Dingell about
classified data and Dingell released the information to the public? Under Form
I89, Fitzgerald would be liable for this disclosure by the chairman of a House
committee. And the scope of the coverage was vast. Paragraph seven said, "I
understand that all information to which I may obtain access by signing this
agreement is now and will forever remain the property of the United States
Government." Fitzgerald's eyebrows shot up. "All information?" he thought.
Fitzgerald realized that if he signed the
form, he would be greatly restricted from informing Congress about cost
overruns. "No way am I going to sign this and be silenced for life," he told his
assistant, Betty Dudka. The outlook was bleak. Who would help? The ACLU had
capitulated on Form I89. The government worker unions had been all but silent on
the issue. Liberals in Congress had been less than effective. The federal courts
had bowed to national security claims and long ago ruled that secrecy contracts
were binding. The news media had also shown no inclination to fight against Form
I89. "I'm alone on this one," Fitzgerald thought, "but I'll be damned if I'm
just going to let the Pentagon shut me up without a fight."
Fitzgerald picked up the phone and called one
of Capitol Hill's most able investigators, Peter Stockton, an aide to Dingell.
Fitzgerald explained that if he signed Form I89, he would be effectively removed
from his role as a congressional investigator. On the other hand, if he failed
to sign it, he would be terminated from his Pentagon job. Stockton quickly
arranged to have the two of them meet with Steven Garfinkel of the Information
Security Oversight Office. Garfinkel explained that Form I89 had been drawn up
in response to White House irritation over leaks to the press. Fitzgerald made a
mental note-Garfinkel was referring to leaks of embarrassing information rather
than leaks of classified information.
Stockton and Fitzgerald pressed Garfinkel.
"What does the term classifiable mean? According to Fitzgerald, Garfinkel
responded, "It could mean anything." He tried to clarify his position.
Classifiable meant any data that would be understood to need classification and
hadn't been classified through an oversight. Stockton and Fitzgerald grew more
concerned after this vague answer and asked Garfinkel if he would remove the
term "classifiable" from the nondisclosure contract before Fitzgerald signed it.
Garfinkel replied that he could not.
Fitzgerald felt insulted. He had never been
accused of divulging classified information about weapons systems-or anything
else. But Garfinkel brushed aside his arguments, boasting that the director of
the Washington office of the ACLU had approved Form I89. Why should one man be
exempt when so many others had signed?
After Garfinkel left the congressional
offices, Stockton and Fitzgerald composed a letter for Dingell to send to
William D. Ford, the chairman of the House Committee on Post Office and Civil
Service, asking him to investigate. "We wanted to make sure that these
agreements . . . would not inhibit the proper and timely flow of information to
the Congress," the letter said.
Fitzgerald returned to his Pentagon office,
his resolve stronger than ever. "I don't intend to sign it, particularly after
talking to Garfinkel. I've talked to my wife and my lawyer and I've prepared for
the worst. I can't conceive of any conditions under which I'll sign that damn
form," Fitzgerald vowed to Dudka in his Alabama drawl.
While being pestered for his signature on an
almost daily basis, Fitzgerald widened his effort to gain congressional support.
He phoned and visited the staff of Gerry Sikorski, a young Minnesota Democrat
who chaired the House Post Office and Civil Service Subcommittee on Human
Resources, which had jurisdiction over government workers. Sikorski agreed to
write a letter on Fitzgerald's behalf, which was sent to Frank Carlucci,
Reagan's new National Security Adviser. The letter roundly criticized Form I89
for its "ambiguities and inconsistencies, as well as vague and questionable
terms which coercively impose inescapable liability on federal employees in
violation of their rights." Sikorski's letter also raised a question of whether
Form I89 violates laws that prohibit interfering with the rights of federal
employees to furnish information to both houses of Congress. "Standard Form I89
tramples on the right of federal employees and the First Amendment" and is "a
new thinly veiled attempt to impose prepublication review . . . on federal
employees." Sikorski concluded by requesting that Carlucci halt the use of the
form.
On July z the comptroller of the air force,
Lieutenant General Claudius E. Watts III, formally issued written orders telling
Fitzgerald to sign Form I89 within thirty days or face the loss of his security
clearance and his job. That was followed on July 7 by a policy statement from
ACLU attorney Allan Adler announcing that "the ACLU finds no inherent
constitutional barrier" to an agreement that "imposes an obligation not to
disclose ... information without authorization." While Adler recommended that
Form I89 be rewritten to eliminate vague language, he seemed to undermine
Fitzgerald's lobbying effort on Capitol Hill. Adler recommended congressional
action only "if administrative solutions are not soon forthcoming." Fitzgerald
was displeased, but not surprised, that the ACLU refused to join the growing
congressional pressure to suspend the secrecy contracts.
As the deadline neared, however, Fitzgerald
gained new and powerful allies. Congressman Les Aspin of Wisconsin, Chairman of
the House Armed Services Committee, wrote Carlucci, "Compliance with Standard
Form I89 should be suspended."
Fitzgerald next received support from Senator
Charles E. Grassley of Iowa, a Republican whose rural constituents were
suffering serious financial hardship and were outraged at the chronic
squandering of tax money by the Pentagon. As a member of the Senate
Appropriations Committee, Grassley asked the Congressional Research Service's
legal arm to review the relevant law regarding secrecy and disclosure. The
service concluded that Form I89 "is arguably in conflict with the language and
intent of" the law protecting whistleblowers.
The same day, Watts repeated his order to
Fitzgerald to sign Standard Form I89 by the deadline, now about a week away.
Fitzgerald began a series of frantic phone calls to congressional offices. Just
one day before the deadline another powerful committee chairman, Congressman
Jack Brooks, complained about Standard Form I89 in a letter, "Such a contract is
incompatible with the First Amendment to the Constitution, regardless of who is
asked to sign it."
In the face of this support, the Pentagon
allowed the deadline to pass and permitted Fitzgerald to stay on the job, at
least for the time being. On August I7, I987, the 200,000-member National
Federation of Federal Employees, about 40 percent of whom work in the Department
of Defense, sued the government to stop implementation of Form I89. The suit was
later joined by the 200,000-member American Federation of Government Employees,
as well as the American Foreign Service Association, which chiefly represents
State Department employees.
On August 21, Garfinkel issued instructions
that, as a temporary accommodation to the lawsuit, no employees would have their
security clearances revoked solely for refusing to sign Form I89. However,
agencies were to continue asking for signed secrecy contracts from their
employees. On the same day, the air force suspended Fitzgerald's deadline for
signing and set no new one.
With the lines of battle now drawn between
the federal employee unions and the Reagan administration, Congressman Sikorski
convened a public hearing on October I5, I987. Sikorski began the hearing by
asking, "What waste, what fraud, what incompetence, what malfeasance and
misfeasance, what high crimes or misdemeanors would never have seen the healing
light of legislative and public scrutiny if federal employees of years past had
been forced to contend with such an all-encompassing restriction?" Senator
Grassley drove home the point that the administration's intent was to place a
blanket of silence over all information generated by the government, and he
added that Form I89 would make it easier for the government to "go after"
whistle-blowers. Grassley then made a declaration that made the next day's
headlines: "Grassley to Civil Servants: Ignore Secrecy Pledge."
Even elected members of Congress had been
told to sign secrecy contracts. Brooks reported that the Department of Energy
had "recently sent me-and I was probably the wrong one to send it to-a Form I89
non-disclosure contract to sign so that I can have access to a report done by
the GAO for the United States Congress." Brooks summed up the lessons he had
learned about government secrecy during thirty-four years in Congress. "Most of
the classification, in my judgment, is not to keep our enemies from finding out
information. It is to keep the American people and the Congress from finding out
what in God's world various agencies are doing and how they are throwing away
money, wasting it.... They throw away money like dirt, and lie and cheat and
hide to keep Congress from finding out, and, for God's sake, they don't want the
American people to find out," he fumed.
Following the hearing, Congress approved a
rider that outlawed the spread of Form I89 (as well as Form 4I93, the
prepublication review contract) and attached it to an appropriations bill.
Reagan had to sign the bill by December 22, I987, if he wanted the executive
branch to have money. Its language was clear: "No funds appropriated in this or
any other Act for fiscal year I988 may be used to implement or enforce the
agreements in Standard Form I89 and 4I93 of the Government or any other
nondisclosure policy, form or agreement . . . that contains the term
'classifiable' [or] . . . obstructs . . . the rights of any individual to
petition or communicate with members of Congress in a secure manner." Congress
did not want to be kept ignorant. That meant Fitzgerald had prevented his
firing-or so it seemed for a time. "Once in a while," Fitzgerald said with a
smile, "we get a little bit done. Even a blind hog finds an acorn.
The government employees lawsuit against the
secrecy contracts was heard in federal court in Washington, D.C. Judge Oliver
Gasch, a conservative, presided. The plaintiffs, including several members of
Congress as well as the federal employee unions, took the position that the
executive branch was acting in defiance of a congressional ban on Form I89 and
Form 4I93. The Reagan administration, in turn, held that the ban was an
unconstitutional abridgment of the powers of the commander in chief, arguing on
the grounds that the president has sovereign rights to control national security
information.
Lawyers for the plaintiffs disputed those
grounds. They noted that the Constitution recognizes the occasional need for
legislative secrecy and permits Congress to meet in secrecy, but they pointed
out that it fails in plain language to mention any secrecy power of the
executive. There exists a general legal principle that says, in essence, if a
law expressly grants powers to one but not to others, then the omission is
presumed as intentional.
Judge Gasch ruled in favor of the Reagan
administration, although he could find little constitutional basis for the
theory of executive primacy. Indeed, Gasch acknowledged that "[n]either
political branch is expressly charged by the Constitution with regulation,
accumulation of, or access to, national security information." Nonetheless,
relying on English common law, he found that Congress had unconstitutionally
violated the president's "sovereign prerogative" to preserve secrets. To posit
the existence of a "sovereign prerogative" in a republic such as the United
States was strange. The basis of a republic, as distinguished from a monarchy,
is that all citizens have equal status before the law, while the notion of
sovereignty grants a superlative power to one individual. Nevertheless, Gasch
decided that constitutionally the president's secrecy powers were contained, by
inference, in his command of the armed forces. Gasch further ruled that the
proper role of Congress was to be a supporter of executive secrecy, to
"facilitate secrecy with appropriate criminal and civil sanctions."
Gasch did allow that perhaps there was a
problem with the excessively broad term "classifiable" used in Form I89. But by
the time of Gasch's decision, Steven Garfinkel had written a new definition of
"classifiable" as "unmarked classified information . . . in the process of a
classification determination." This revision seemed to satisfy Gasch.
Gasch's decision was appealed directly to the
U.S. Supreme Court.
Meanwhile, Congress passed yet another ban on
the spread of secrecy contracts as part of another appropriations bill. Reagan,
placed in the same political box as before, signed the bill into law on
September 23, I988, even while denouncing the ban. He charged that it "raises
profound constitutional concerns" and "interferes with my ability to prevent
unauthorized disclosures of our most sensitive diplomatic, military, and
intelligence activities." The general impression was that the spread of
censorship again had been outlawed. "People will get the impression . . . that
it's ended, yes," Garfinkel observed. However, in his signing statement, Reagan
ordered: "In accordance with my sworn obligation to preserve, protect and defend
the Constitution, [the ban] will be considered of no force or effect unless and
until the ruling of the district court is reversed by the Supreme Court."
Seven days later, Garfinkel replaced Standard
Form I89 with Standard Form 3I2, from which he had removed the catchall term
"classifiable." He sent the new form to more than fifty agency chiefs for
circulation to employees. Fitzgerald waited on edge, expecting the worst. If the
Supreme Court upheld the Gasch decision, Fitzgerald might be fired.
On November ,, I988, George Bush won the
presidential election. As CIA director in I976, he had been a strong advocate of
spreading secrecy agreements, and he became the first president-elect in history
to require his transition team to sign secrecy contracts.
On April I8, I989, Chief Justice William H.
Rehnquist delivered the Supreme Court's ruling on the Gasch decision. Gasch was
ordered to reconsider the case. Rehnquist stated, "We emphasize that the
District Court should not pronounce upon the relative constitutional authority
of Congress and the Executive Branch unless it finds it imperative to do so."
Rehnquist was sidestepping the issue, preferring to keep the courts out of a
fight that might never be settled permanently.
In the fall of I989, Congress again
legislated limits on the secrecy contracts with a rider to another
appropriations measure. President Bush signed it on November 3, I989, but, as
Reagan had done, he instructed his subordinates to ignore the law. Bush's
signing statement, which received little notice, read:
I am compelled to note my strong objection to
section 6I8, . . . which purports to forbid the implementation or enforcement of
certain nondisclosure agreements required of government employees with access to
classified information. This provision . . . raises profound constitutional
concerns.... Article II of the Constitution confers responsibility on me as
President and Commander in Chief to conduct the national defense and foreign
affairs of the United States. In this capacity, I have the constitutional duty
to ensure the secrecy of information whose disclosure would threaten our
national security.... Furthermore, section 6I8 could suggest that I am
prohibited from establishing and enforcing appropriate procedures to control the
dissemination of classified information by executive branch employees to Members
of Congress.
Here was the crux of the matter-the executive
branch sought the control of information going to Congress.
"I believe," Bush continued, "that section
6I8, thus construed, would jeopardize the nation's security by
unconstitutionally interfering with my ability to prevent the unauthorized
disclosure of information concerning our most sensitive diplomatic, military,
and intelligence activities." Thus he "direct[ed] that executive branch
officials implement the provisions of section 6I8 in a manner consistent with
the Constitution." In essence, Bush was ordering that the law be disobeyed.
"We're still in business," Garfinkel said. He
kept pressuring agencies to distribute the new Form 3I2. With Bush as president,
Garfinkel's Information Security Oversight Office headquarters was moved out of
the sixth floor of the General Services building to a fancier address closer to
the White House. According to Garfinkel, this move was intended to signal the
increased importance of information security.
In his Pentagon office, meanwhile, Fitzgerald
kept refusing to sign the new secrecy contract. No one, however, cared to press
Fitzgerald any longer, for he had achieved celebrity status in Washington.
During an interview Garfinkel threw up his hands at a question about Fitzgerald,
as if to say, "I don't ever want to hear about Ernie Fitzgerald again, and I
don't want to know if he does not sign a secrecy contract.
With Gasch's decision remanded back to his
court, lawyers began trying to negotiate a settlement between Congress and the
Bush administration over the secrecy oaths. From the point of view of the
congressional lawyers, it was one thing for the executive to say to a civil
servant, "You can't disclose to the public," but quite another to say, "You
can't disclose to Congress." Bush's lawyers were also willing to make the same
distinction. Garfinkel would amend the secrecy contracts to protect government
employees who inform Congress. In January I99I, he added to Form 3I2 the
sections from the Whistleblower Protection Act that protect those who disclose
waste, fraud, and abuse to Congress.
The congressional right to know had been
steadily eroded during the previous two decades, and, given a political climate
in which the executive branch was still in the ascendancy, Congress was
satisfied with this small victory. The compromise essentially ended
congressional resistance to the secrecy contracts.
***
Congress has many arcane rules designed to
control information, many in conflict with one another. Historically, Congress
could and did release information, classified or not, as a branch of government
equal to the executive. Up until I976, even the CIA recognized the power of
Congress to declassify information, according to an internal Agency memorandum
that has never been made public. The turning point came when the House Select
Committee on Intelligence (usually referred to as the Pike Committee for its
chairman, Congressman Otis Pike of New York) issued a report on the CIA so
scathing that the House voted to seal it. In January I976, John D. Morrison Jr.,
the CIA deputy general counsel, analyzed the report and discovered to his
delight a crucial assertion: "no one in Congress can declassify." To the CIA,
this was news. In a memo, Morrison pointedly remarked, We shall cherish this
latter statement against interest and use it as precedent, so do not say
anything to make them [the committee] reconsider it." It is a particular irony
that the Pike Committee, while it criticized the CIA and fought for access to
CIA documents, inadvertently contributed to surrendering the congressional right
to disclose secrets of the executive branch.
From that point on, Congress continued to
lose control of executive information. The next setback was in the traditional
right for each and every member of Congress to have complete and equal access to
all information in the custody of any congressional committee. In practical
terms, this meant when a member was concerned with, say, the overthrow of a
government in Chile, the member could inspect the classified testimony of the
CIA director delivered in executive session of the intelligence committee and
engage in political debate, through correspondence with fellow members about it.
However, on July I4, I977, when Stansfield Turner was CIA director, the House
consolidated CIA oversight in the House Permanent Select Committee on
Intelligence and set up a special House rule creating a five-day waiting period
before classified information can be disclosed to the public. The rule gave the
president time to indulge in arm twisting, thus preventing the vast majority of
secrets from ever being released. Another rule restricted the sharing of such
information with another member of Congress. By limiting debate among members of
Congress, these rules amounted to an erosion of the basic autonomy of Congress
in favor of executive power.
In I987 Congress imposed upon itself the
requirement that the House and Senate, in consultation with the CIA director,
"shall each establish, by rule or resolution, procedures to protect from
unauthorized disclosure all classified information and all information relating
to intelligence sources and methods furnished to the intelligence committees."
Thus, Congress accepted the president's right to deter- ~ mine unilaterally what
must be kept secret from the public.
On January I7, I99I, Senator Moynihan made a
metaphorical point about the ending of the cold war by introducing a bill that
would have abolished the CIA and transferred its functions to the Department of
State. Before the collapse of the Soviet Union, only the former editor of
CourlterSpy magazine had dared to suggest such an idea. Moynihan's bill, S. 236,
also proposed that intelligence budgets be published. While the abolition of the
CIA was not taken as a serious threat, the prospect that budgets might be
drastically cut back struck terror into the heart of the bureaucracy. The
leadership of the CIA was put on notice that they had to find new reasons to
justify the Agency's rarefied governmental powers.
In May I99I, President Bush nominated Robert
M. Gates to replace William Webster as CIA director. Gates had specialized in
Soviet affairs as a career intelligence analyst. In September, during Gates's
contentious confirmation hearings before the Senate Select Committee on
Intelligence, Melvin A. Goodman appeared as a witness. Goodman, a former CIA
division chief in Soviet foreign policy, testified that Gates had, over a period
of years as deputy director of the CIA, given Congress and the president
misleading and politicized intelligence. "Gates's role," he said, "was to
corrupt the process and the ethics of intelligence . . . [and] to ignore and
suppress signs of the Soviet strategic retreat." Other witnesses at the hearings
accused Gates of having shaped intelligence reports during I986 in a manner that
supported the U.S. sale of arms to Iran.
This damning testimony undercut Gates's
chances of confirmation. Fighting to gain favor and to show that he understood
the changing times, Gates pledged to the committee that if approved as director
he would run a more open CIA. The committee was persuaded by his promise and
voted in favor of his confirmation.
After Gates was sworn in, he sent a
memorandum on November I8, I99I, to his director of public affairs, Joseph
DeTrani, setting up the CIA Openness Task Force. Its purpose was to continue
"improving accessibility to information about [the] CIA by the public and
overall openness to the extent possible" (the operative words being "to the
extent possible"). DeTrani was ordered to explore how the CIA could improve
"openness" and "accessibility" through use of the news media and by expanding
relations with universities. A report was due in a month.
DeTrani's task force came up with twenty-one
recommendations to counter the growing impression that the CIA and secrecy
itself had become anachronisms. The principal recommendation called for a public
relations campaign directed at members of the general public. Rather than take
any substantive steps toward reform, the idea was to do a better job of selling
the mystique of the CIA. "There was substantial agreement," the report said,
"that we need to make the institution and the process more visible and
understandable rather than strive for openness on specific substantive issues."
For Gates, the point was to use the so-called
openness public relations campaign to answer critics who wanted big reductions
in the congressional intelligence community appropriation (estimated to be about
$30 billion annually). For DeTrani, the point was the same, except on a smaller
scale. He was facing a cut of 33 percent in the CIA public affairs office. In
his report DeTrani stressed, "We recognize that a program of increased openness
will require commitment of additional resources, not only for [the public
affairs office] but for other parts of the Agency." Gates and DeTrani proved the
Washington cliché: the first concern of a bureaucrat is to preserve his budget.
DeTrani recommended that the CIA engage in a
broad program to influence U.S. academia, forgetting the scandal over the CIA
use of the National Student Association in the I960s. The CIA Editorial Board
had identified hundreds of CIA-authored articles, and DeTrani suggested that
scholars connected with journals and editors at university presses could be
pushed to publish them. In addition, he noted that the Agency had a wide range
of contacts with academics through recruiting, professional societies, and
contractual arrangements, which he thought could be expanded. The CIA, he
proposed, could become an institutional member of scientific and professional
societies and could sponsor more academic conferences and seminars, even
bringing scholars to study at Langley. Furthermore, DeTrani wished to expand the
CIA officer-in-residence program, which currently had thirteen CIA officers at
universities, each provided with about $100,000 This entire recommendation, of
course, flew in the face of the lessons supposedly learned after the Pike
Committee severely criticized the CIA in the I970s for trying to manipulate
public opinion through academia.
The Pike Committee also had rebuked the
Agency for manipulating the U.S. media. News organizations, domestic and
international, had been scandalized to discover that the CIA employed more than
four hundred journalists as spies. Now DeTrani was recommending "a strategy for
expanding our work with the media as a means of reaching an even broader
audience." It was a suggestion remarkable in its brazenness-and clever as well.
DeTrani wanted the CIA to declassify certain files about historical events in
order to put the Agency in a more positive light. By assisting journalists,
"intelligence failure" stories could be turned into "intelligence success"
stories, he argued, and he boasted about past triumphs with the news media: "In
many instances, we have persuaded reporters to postpone, change, hold, or even
scrap stories that could have adversely affected national security interests or
jeopardized sources and methods."
DeTrani also wanted to work with filmmakers
on "accuracy" and "authenticity" and to help friendly Hollywood directors by
allowing them to shoot movies at CIA headquarters. Along the same lines he
wanted to cooperate with feature writers to "personalize the world of
intelligence in broad circulation newspapers or magazines." Other propaganda
could be aimed directly at the public. Unclassified versions of the Agency's
Studies in Intelligence could be sold, and CIA officers could step up their
number of speeches to civic and service dubs, mainly Rotary and Kiwanis. A CIA
speakers bureau already had been established in I990.
In addition, DeTrani had a full set of
recommendations for working more closely with new members of Congress, as well
as staffers on Capitol Hill and at congressional agencies, such as the
Congressional Research Service and the Office of Technological Assessment.
Basically, the plan was to take them into the Agency's confidence in attempts to
convince them of the CIA's worth, a rather cynical process of co-optation in
which spies befriend and manipulate their targets. This technique is a specialty
of espionage agents. For the average outsider, being taken into the CIA's
confidence can be breathtaking.
The public release of the Openness Task Force
report was scheduled for April Fool's Day I992-with the last four inches of
DeTrani's report to be blacked out. But the report was made public after its
secrecy had become an embarrassment to the CIA. A New York Times reporter,
Elaine Sciolino, revealed its existence on January I2, I992. During the
following week, DeTrani called it an "internal advisory document that [could
not] go outside the Agency," classified secret. On January I4, DeTrani said he
would keep the Openness Task Force report secret until Gates issued his orders
based upon it. However, Director Gates had already dispatched those orders for
the domestic propaganda operation ten days earlier, on January 6, to his deputy
directors: they covered five pages.
Gates accepted DeTrani's primary
recommendation-the CIA should improve and update its image without changing its
fundamental character. Gates stated, "I believe that CIA, whatever the level of
its public affairs effort, will find it difficult to win recognition as an
'open' institution." In other words, the Agency should give out information that
makes it look good and, as usual, keep the rest secret. While ordering new
cooperation with the news media, Gates cautioned that the CIA would not be
pressured into changing its approach to secrets. The only incentive for
cooperating with journalists, Gates said, was to enhance "the broader Agency
programs."
Gates wanted the CIA to conduct carefully
controlled background briefings of selected reporters who could be relied upon
to deliver the CIA message without the public being able to discern precisely
the source. Gates also took up DeTrani on his suggestion to persuade friendly
journalists to write profiles of CIA officers, although he insisted that
meticulous records be kept of such contacts. Such records would, of course,
assist the Agency's Unauthorized Disclosures Analysis Center agents in combating
news leaks. Gates refused DeTrani permission to appear more often on television
but instead assigned extra television time for himself He was to be the CIA's
premier salesman, and everyone else was to fall in behind him. "All of us in the
Agency simply should keep our eyes and ears open for feedback, from whatever
quarter, on the success of our efforts," Gates directed.
In addition to media operations, Gates
approved direct CIA propagandizing of the general population through the
circulation of press releases detailing the Agency's history, mission, and
functions in light of the new world order. "The Agency's briefing program for
the full range of potential audiences should be expanded as opportunities
arise," Gates ordered. He approved CIA officers joining scientific and
professional societies and urged that operations on American college campuses be
expanded by setting up intelligence studies programs and finding universities to
publish CIA material. Scholars would also be encouraged to publish
CIA-subsidized articles in the United States. Gates also established a program
to bring chief executive officers of corporations to Langley for a day,
beginning with CEOs already cooperating with the Agency. Under a similar
program, members of the media with influential voices-including even Norman
Mailer-were to be invited to speak with CIA groups.
Regarding the release of documents, Gates
ordered a review of historical and FOIA records, "with a view to accelerating
the process [of release]." However, Gates's orders made it plain that CIA
"openness" did not mean the lessening of secrecy. "Openness" meant adopting a
well-crafted public relations scheme aimed at the most important opinion makers
in the nation.
Gates's assessment that the CIA had a public
relations problem was proved later in January. The news commentator with the
largest audience in the United States, 60 Minutes sage Andy Rooney, blasted the
CIA in his syndicated newspaper column printed January 26, I992. It was
headlined by the San Francisco Sunday newspaper "A Lack of Intelligence: Fire
the Spies." Rooney wrote, "If they cut the $30 billion [sic] Central
Intelligence Agency budget tomorrow by 75 percent, it wouldn't be a month too
soon." He said, "When the CIA is questioned about anything, they have a standard
answer: 'That's a secret that would compromise the security of the United
States."
For nearly ten years Aldrich Ames spent money
in lavish fashion on cars, real estate, and the good things in life. A longtime
CIA agent, Ames often purchased his extravagances with cash. Unbeknownst to his
superiors at Langley, the KGB was regularly paying him large sums of cash,
eventually totaling more than $2.5 million. In return, Ames was stealing
documents from Agency files and supplying the Soviets with the names of U.S.
agents working behind the Iron Curtain. As far as can be ascertained, the
information passed on by Ames led to the deaths or disappearances of at least
twelve members of the U.S. intelligence community in Europe and the former
Soviet Union. After sustaining a career of thirty-one years with the CIA, Ames
was finally caught in February I994. He immediately made Agency history as the
most senior officer ever found spying for the other side in the cold war. He was
also by far the best-paid KGB mole inside America-so well paid, in fact, as to
raise a question about how he was able to elude detection for so long.
On accepting a plea bargain that sentenced
him to life in prison without parole, Ames himself suggested an answer in an
extraordinary confession at the U.S. District Court in Alexandria, Virginia.
First Ames described how a culture of cynicism had taken over at the CIA.
"I had come to believe," he told the judge,
"that the espionage business as carried out by the CIA and a few other American
agencies was and is a self-serving sham, carried out by careerist bureaucrats
who have managed to deceive several generations of American policymakers and the
public about both the necessity and the value of their work." In order to
protect their own bureaucratic interests, he said, CIA officials set up a system
that keeps every detail from the American people. The "sham" of the U.S.
intelligence community, he said, is immeasurably aided by secrecy." The
revelation of Ames's duplicitous life and the publicity from his courtroom
statement sent shock waves across Capitol Hill. Senator John Warner, a
Republican from Virginia, spoke grimly about the need to set up an outside,
independent group to issue recommendations for a major restructuring of U.S.
intelligence.
The new CIA director, R James Woolsey, who
had been appointed by the first Democratic president in twelve years, William
Jefferson Clinton, felt obliged to try to counter Ames's allegations during a
speech on July I8, I994, at the Center for Strategic and International Studies
in Washington. Woolsey compared Ames to Benedict Arnold and sarcastically noted
that while there were a few differences between the two traitors, "they are all
in Benedict Arnold's favor." Clearly no one in Woolsey's audience of journalists
and intelligence experts held any brief for someone as mercenary as Ames, and
yet the criticisms leveled by Ames had struck a chord with the Washington
insiders. Since I947 they had promoted the premise of large-scale secrecy as a
necessary element of the cold war. With the cold war over and arguably won,
wasn't it time to take a hard look to see if the CIA had become too
self-righteous and secretive, too antagonistic to a society based on democratic
precepts?
Woolsey tried to deflect the criticisms by
accepting some of them as valid. "The camaraderie within the [CIA] fraternity
can smack of elitism and arrogance," he admitted. Then, in a Reaganesque tactic,
Woolsey straightened up at the lectern and aimed his remarks over the heads of
his audience to the public at large. "The American people have the right to ask
where the CIA is going after the cold war and after, for that matter, Aldrich
Ames," he said. "For us to assume your continued support or your willingness to
give us the benefit of the doubt will not do. We have the obligation to provide
you with answers through the deliberative process with the members of Congress
and through speaking directly to you. Problems that have arisen will be
addressed fully, openly and honestly, warts and all. Programs that are no longer
relevant will be abolished."
No CIA director had ever sounded so defensive
about the Agency in a public speech, nor had a CIA director ever come so close
to a mea culpa for the abuses inherent in the secrecy program. Nonetheless, the
reforms promised by Woolsey-more openness, more accountability-had been promised
before, most recently by Robert Gates. Given the record of past directors and
past presidents, was it realistic to believe the Clinton administration would
usher in a new era?
The answer lay in a struggle between two
forces. One was the historical and political force created by the end of the
cold war. In America, land of the free, it had usually been assumed that secrecy
was an aberration, something to be tolerated only in the extreme circumstances
of wartime. Now, without a security rationale for secrecy, the guardians of open
government would presumably be able to rally most of the American people to
their side. On the opposite side was the countervailing force of the
intelligence bureaucracy, whose leaders for nearly half a century had operated
with secrecy uppermost in mind. Although many of the old cold war warriors were
now dead or retired, their younger proteges still occupied positions of power.
Even if Woolsey could be taken at his word, he would have to overcome active
resistance from within his own ranks, as well as the inertia present in any
bureaucracy.
The key would be the new president. Clinton's
election in I992 had brought into office the first president since Herbert
Hoover who had no association with World War II and who had not lived through
the Japanese attack on Pearl Harbor. Shortly after his inauguration, Clinton
pledged to usher in an era of candor, and he set into motion various efforts to
liberalize the rules governing secrecy.
The era of candor began with a presidential
memo issued on October 3, I993, addressed to the heads of all government
agencies, which directed them to stop their routine resistance to FOIA requests.
Clinton's attorney general, Janet Reno, explained the rationale for openness by
saying that it was essential to government accountability and that the FOIA "has
become an integral part of that process." According to Reno, the Justice
Department would scrap a I98I rule promulgated by the Reagan administration that
allowed agencies to withhold information if they had any conceivable legal
excuse. Justice would no longer provide legal counsel as a matter of routine
when federal agencies denied FOIA requests. In an even more radical departure
from the past, Clinton took the position that the public should not have to rely
just on the FOIA to obtain information about the inner workings of the federal
government. Rather, he wrote in his memo, it is up to the government to keep the
citizens informed: "Each agency has a responsibility to distribute information
on its own initiatlve.
Within a month, however, Clinton's enthusiasm
for an open, accountable government began to fade, and so did the hope that he
would institute a major overhaul of the secrecy program. Like Presidents Johnson
and Nixon before him, Clinton found the sticking point to be not concern about
national security but rather his own sensitivity about activities at the White
House. In essence, Clinton decided that White House affairs would not be subject
to his policy of openness. Clinton's friend and associate attorney general,
Webster Hubbell, reminded all federal FOIA officers to return to the White House
any document found in the course of FOIA searches if it had originated at the
White House; under no circumstances were the documents to be released to the
public. In addition, Hubbell increased the number of White House departments
that could be exempt from the FOIA, including such working groups as the Clinton
health care task force, which was then facing a legal challenge for holding
meetings in secret under the supervision of Hillary Rodham Clinton.
Although actions of the president and his
staff had always been exempt from the FOIA, the Clinton administration soon made
it clear that the ring of secrecy around the White House would become even
tighter. When a request by Knight-Ridder Newspapers for the salaries of
presidential staffers was denied, Richard Oppel, on behalf of the American
Society of Newspaper Editors, fired off a letter to Clinton: "There may be no
specific law commanding the release of the salaries," he wrote, "but there is
certainly no law authorizing the withholding of the information. In the absence
of such authorization, the information should be public without discussion. The
people's business, we submit, is the people's business." Despite the scant
possible justification for refusing to disclose as innocuous a piece of
information as someone's salary, the Clinton administration held firm.
In addition, the Clinton administration
became the first to argue in court in favor of a more restrictive interpretation
of the FOIA with respect to National Security Council (NSC) documents. Previous
administrations had agreed that the NSC generated two kinds of
records-presidential records and agency records-and that the latter were subject
to the FOIA. Departing from precedent, the Clinton Justice Department took the
position that all NSC records fell into the presidential category and could not
be obtained through the FOIA.
A rare opportunity for reforming the
intelligence bureaucracy seemed to be slipping away from an embattled Clinton.
At the beginning of his presidency, Clinton did not boldly challenge the
bureaucracy and relied on others, often the bureaucrats themselves-to carry out
reforms. In the case of the CIA, he relied on Woolsey, a Yale lawyer whose
background and sensibilities were similar to those of many career officers under
him. In light of Ames, that reliance on Woolsey and the Agency good old boys for
reform was now seen as questionable.
Clinton showed how far he was willing to go
with the new policy of openness in the summer of I994. The issue at hand was
whether the total amount of the intelligence community's annual budget would
remain a secret. For some time there had been no plausible reason for the
American people not to know how much the intelligence community spends. The full
Senate had passed resolutions in I99I, I992, and I993 favoring disclosure of the
figure. Robert Gates had testified in I99I that he had no problem with
disclosure. Besides, almost everyone who frequented the corridors of Capitol
Hill or the nearby watering holes (including any foreign agents worth their
salt) already knew the number. And, to make the secrecy even more of a joke, a
Senate committee had inadvertently published enough figures to allow easy
calculation of the intelligence community budget for fiscal year I994 ($28
billion). However, when it came time for Woolsey to release the budget figure
formally, he refused. Instead, he and Clinton's other national security
officials lobbied Congress to prevent formal disclosure. When Dan Glickman of
Kansas, chair of the House Permanent Select Committee on Intelligence, and
Robert Torricelli of New Jersey introduced an amendment to make the disclosure
mandatory, the Clinton team managed to defeat it by a 22I-I94 vote.
p199
The lifetime secrecy contracts had emerged from the Operation MHCHAOS offices,
spreading throughout the CIA and the National Security Agency. Then, at ISOO and
CIA insistence, the contract moved into the ranks of government and civilian
workers at the State Department and in the Pentagon and to some I., million
employees of government contractors. The use of the contract expanded
pervasively through the executive branch; as opposition from the defenders of
constitutional rights evaporated, it gradually moved into Congress. In I99I
Garfinkel made some small changes in the secrecy contract and added
whistle-blower protection for congressional Witnesses. That seemed to silence
the last outspoken opposition in the House. A few senators, including Charles E.
Grassley, Republican of Iowa, continued to be wary of White House intrusions on
traditional congressional independence.
By the I990s, reflecting the general
conservative shift in Congress, many House members were actively welcoming a
secrecy oath. Consideration of the oath, less comprehensive than the standard
contract, first came up in the House Select Committee on Intelligence during a
discussion of the fiscal year (FY) I992 Intelligence Authorization Act. That led
to a House rule requiring the intelligence committee members and staff to sign
the oath. Interest in broadening the use of the oath did not stop there,
especially for committee member Porter J. Goss of Florida. Goss's ties to the
CIA dated from I962 and his ten-year stint as a clandestine service officer at
the Agency. He and his fellow enthusiast, Henry J. Hyde of Illinois, offered
amendments to the FY I993 and I994 authorization acts that would require secrecy
oaths from every member of the House. The amendments did not prosper, but when
the I04th Congress convened on January 4, I995, backers of the oath changed
tactics. This time the oath requirement for every I House member was included in
the packet of rules from the House Conference of the Majority. It became a new
rule without debate.
***
p200
In the mid-I980s, Jeane Kirkpatrick sounded the alarm about government
censorship. Although a member of the Reagan administration's inner foreign
policy circle, Kirkpatrick had had a personal encounter with government censors
over her refusal to sign the lifetime secrecy contract. Upon returning to her
political science chair at Georgetown University from her post as U.S. United
Nations ambassador, Kirkpatrick reexamined John Stuart Mill's classic essay On
Liberty and delivered a lecture on censorship. "Societies are not made stronger
by the process of repression that accompanies censorship," she warned.
"Censorship requires an assumption of infallibility, and that seems to Mill
invariably negative. Repression of an opinion is thus bad for the censor, who
inevitably acts from a conviction of his own infallibility," she told her
students, "and bad for the opinion itself, which can neither be corrected nor
held with conviction equal to the strength of an opinion submitted to
challenge."
As the twentieth century draws to a close,
the I947 National Security Act has become the Pandora's box that Ambassador
Kirkpatrick and Congressman Hoffman had feared. Placing a legal barrier between
foreign intelligence operations and domestic politics in the National Security
Act has proved ineffectual. In the decades that followed I947, the CIA not only
became increasingly involved in domestic politics but abridged First Amendment
guarantees of free speech and free press in a conspiracy to keep this intrusion
from the American people. The intelligence and military secrecy of the I940s had
broadened in the I960s to covering up the suppression of domestic dissent. The
I980s registered a further, more fundamental change, as the suppression of
unpopular opinions was supplemented by systematic and institutionalized
peacetime censorship for the first time in U.S. history. The repressive
machinery developed by the CIA has spread secrecy like oil on water.
The U.S. government has always danced with
the devil of secrecy during wartime. By attaching the word "war" to the economic
and ideological race for world supremacy between the Soviet Union and the United
States, a string of administrations continued this dance uninterrupted for fifty
years. The cold war provided the foreign threat to justify the pervasive
Washington belief that secrecy should have the greatest possible latitude and
openness should be restricted as much as possible-constitutional liberties be
damned.
With the collapse of the Soviet Union as a
world power in I990, even the pseudo-war rationale evaporated. But the partisans
of secrecy have not been willing to accept the usual terms of peacetime They
have made clear their intentions to preserve and extend the wartime system. They
will find a rationalization: if not the threat of the Soviet Union, then the
goal of economic hegemony. Thus the U.S. government now needs to keep secrets to
give an advantage to American corporate interests. Yet it is entrepreneurs who
have been making the most use of FOIA-not journalists, not lawyers. As of I994,
the great preponderance of all FOIA requests have been for business purposes. As
the framers of the Constitution understood, the free exchange of ideas is good
for commerce, but this idea has been widely forgotten in the years since the
passage of the I947 National Security Act.
Only recently in the history of the world's
oldest republic has secrecy functioned principally to keep the American people
in the dark about the nefarious activities of their government. The United
States is no longer the nation its citizens once thought: a place, unlike most
others in the world, free from censorship and thought police, where people can
say what they want, when they want to, about their government. Almost a decade
after the end of the cold war, espionage is not the issue, if it ever really
was. The issue is freedom, as it was for the Minute Men at Compo Hill. The issue
is principle, as it was for Ernest Fitzgerald, who never signed a secrecy
contract but retained his Pentagon job because he made his stand for the First
Amendment resonate in Congress. Until the citizens of this land aggressively
defend their First Amendment rights of free speech, there is little hope that
the march to censorship will be reversed. The survival of the cornerstone of the
Bill of Rights is at stake.
***
An Annotated List of Some FBI Surveillance
Targets during the 1980s
I wrote the FBI on February in I987 asking
for files on I27 political groups, most of which were opposed to the U.S.
government's arming of the Contras. The Bureau's response was dragged out over
five years. The vast majority of the files were denied under the I986 FOIA
amendment, but the FBI did release some information about the size of the files,
the number of pages kept secret, and the reasons for that secrecy. The FBI also
released a few heavily blacked-out pages, enough to give a glimpse of the
Bureau's investigations into a number of highly visible political groups.
The unwanted and unwarranted attention to ...
politically active citizen organizations shows both the FBI's institutionalized
disregard for constitutionally guaranteed rights and the use of FOIA exemptions
to hide this abuse of power. Many of the groups have a long history of lobbying
Congress and publishing newsletters-activities well within the scope of the
First Amendment. None of the FBI investigations resulted in criminal
indictments. Rather the purpose of the investigations, as is evident from the
documents, was to monitor their political activities. The following is a
digested version of information concerning these FBI investigations.
American Committee on Africa/Africa Fund was
a New York-based organization opposed to apartheid in South Africa. The FBI
withheld 42, of 6I pages "in the interest of national defense or foreign
policy." On July I8, I979, the FBI searched for all subversive and nonsubversive
information on this group, on which the FBI kept a domestic security file and a
Registration Act investigative file.
Arms Control Computer Network, Christic
Institute, and the Committee Against Registration and the Draft. The FBI kept
all records on these groups secret for "national defense" and to protect
"confidential sources."
Black Student Communications Organizing
Network is based in Jamaica, New York, and unifies black student groups. FBI
files have been withheld in their entirety to protect "national defense or
foreign policy."
The Center for Defense Information, based in
Washington, D.C., opposes excessive spending for weapons and policies that
increase the danger of war. The FBI Director, in an administrative matter
involving no alleged violation of laws, searched FBI files for data on the group
for reasons the FBI kept secret. The FBI withheld fifty-seven pages of documents
to protect national defense, privacy, and confidential sources in a "foreign
counterintelligence matter." Other FBI reports profiled the head of the group,
Gene Robert LaRocque, citing Whos Who: "[He] is a retired naval officer,
commander Task Group in Sixth Fleet, member of faculty of Naval War College."
Another FBI document said the Center for Defense Information "functions as a
'gadfly' to the U.S. military establishment and is staffed with very liberal,
anti-establishment, anti-FBI/CIA academics." A memo from the Special Agent in
Charge to the FBI Director was stamped "SECRET" and said that LaRocque published
The Defense Monitor, which reports timely information regarding military
establishments. On August I3, I986, FBI headquarters requested that information
on the group be forwarded to the FBI agent attached to the U.S. Embassy in Bonn.
Central American Solidarity Association was a
group opposed to Contra funding. Of the seventeen pages in this foreign
counterintelligence-terrorism file, fifteen were kept secret.
Children's Campaign for Nuclear Disarmament
and the Environmental Policy Center is based in Plainfield, Vermont. The FBI has
kept one reference secret to protect "confidential sources."
Citizens Against Nuclear War. The FBI has
kept six cross-references secret for reasons of national defense."
Institute for Defense and Disarmament
Studies, headquartered in Cambridge, Massachusetts, conducts public education
and research and advocates lowering defense spending. In June I983, the Naval
Investigative Service asked the FBI to check on this group because of a
counterintelligence interest.
Interfaith Center to Reverse the Arms Race.
The FBI has kept six cross-references classified secret to "protect the national
defense, privacy, and confidential sources."
Lawyers Committee for Human Rights. The FBI
kept two cross-references exempt from disclosure to protect "confidential
sources."
Lutheran World Ministries was based on Park
Avenue South in Manhattan, New York. FBI documents containing cross-references
were determined to be exempt from disclosure to "protect confidential sources.
Medical Aid for El Salvador. The FBI kept
secret one file of an investigation that was pending on November 30, I988, to
protect "confidential" sources and the "national defense."
National Network in Solidarity with the
People of Guatemala is a Washington group advocating an end to U.S. military aid
in Guatemala. All FBI counterintelligence-terrorism records on it are kept
secret under the I986 FOIA amendment.
National Network in Solidarity with the
People of Nicaragua was a Washington group opposed to arming the Contras. Of the
forty-six pages in this file, the FBI kept secret forty-one pages.
National Peace Academy Campaign, Sojourners
Peace Ministry and World Peacemakers. Four cross-references were withheld to
protect "national defense."
Nuclear Control Institute has worked since
I98I in Washington to oppose nuclear proliferation. Of the FBI file on this
group, the FBI has kept nine pages secret "to protect privacy and confidential
sources."
The Nuclear Weapons Freeze Campaign was a
major opponent of Reagan-Bush arms policies. Of its file, the FBI kept secret
thirty pages and released eight, which revealed that in I985, an FBI agent got a
leaflet in Burlington, Vermont, about the organization of a nationwide
contingency plan by the Resistance Pledge Network to block U.S. intervention in
Central America. The agent reported the contents of the leaflet, which advocated
a nonviolent, no drugs, no-property damage demonstration against U.S.
intervention, and on March 6, I985, forwarded the report to the CIA, the Naval
Investigative Service, the Air Force Office of Special Investigations, the
United States Secret Service, and the Army Intelligence Command at Fort Meade.
Patrice Lumumba Coalition/Unity in Action
Network was based in Harlem, New York. Of the FBI's file of I05 pages, it kept
secret 78. At least one FBI document in the file had been sent to the CIA, the
Defense Intelligence Agency, and the State Department Bureau of Intelligence and
Research. The subjects of the documents were the African National Congress, the
Pan African Congress, and the identities of individuals who attended the
International Conference on Islam during October I986. The contents of the memo
were withheld to protect "foreign policy" and "privacy."
Peace Child Foundation. The FBI has kept
twenty-two pages secret concerning a June I986 foreign counterintelligence
investigation by FBI Squad I4, San Francisco.
Peace Links: Women Against Nuclear War. An
FBI agent in Detroit wrote headquarters on November 6, I986, that a Peace Links
chapter was part of a national organization of women to promote nuclear
disarmament and peace between East and West. The rest of the memo was censored
to protect "defense, foreign policy and confidential sources."
Student/Teacher Organization to Prevent
Nuclear War of Boston. The FBI Special Agent in Charge of the New Haven,
Connecticut, Field Office sent documents to the FBI director that had been
provided by a confidential source, including a state, local, or foreign agency
or authority, under the I986 amendment. The New Haven FBI office placed this
file in dosed status March II, I985.
Union of Concerned Scientists. The FBI has
kept 296 pages secret to protect foreign policy, privacy, and confidential
informants. According to a December I6, I986, FBI summary, "The central files of
this Bureau reveal the following information.... The Union of Concerned
Scientists is composed of senior and junior faculty members and graduate
students at the Massachusetts Institute of Technology . . . organized for the
expressed purpose of a one-day strike aimed at turning scientific research
applications away from military technology and toward the solution of
environmental and social problems. The UCS maintained no formal membership
rolls.... As of this date, the UCS is under investigation due to the fact that
its activities meet the criteria that fall within the Attorney General's
guidelines."
United Nations Center Against Apartheid,
established by the General Assembly of the United Nations in I962, was opposed
to South African racial policies. The FBI files contain a secret report from the
CIA dated April I984. The CIA withheld the document in entirety to protect the
"national defense."
U.S. Out of Central America. The FBI has kept
twenty pages secret to protect confidential sources.
Washington Office on Latin America was a
Washington group with thirteen employees and an annual budget of $500,000 that
opposed the Reagan policies in Central America. The FBI's file contained
seventy-nine pages, of which the FBI kept secret seventy-three pages under the
FOIA amendment's provisions for hiding foreign counterintelligence matters.
Parts of this file were distributed to the FBI San Antonio office and to the
Defense Intelligence Agency.
Witness for Peace is a Washington group with
an annual budget in excess of $I million that characterizes itself as a
grassroots, faith-based, nonviolent group opposed to U.S. intervention in
Central America. The FBI kept secret eleven pages on this group under the I986
amendment because they could "reasonably be expected to interfere with
enforcement proceedings."