Ending the Cold War at Home A National Conference American Civil Liberties Union, Washington, D.C. "Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad." -- James Madison to Thomas Jefferson, May 13, 1798 Proceedings of Ending the Cold War at Home: A National Conference Winter 1991, Washington Plaza Hotel, Washington, D.C. Acknowledgments We wish to thank Steve Daitz and Christina Nicolosi for their invaluable assistance in the preparation of this report. Copies of this report, and the companion report, "Ending the Cold War at Home: A Public Policy Report," are available for $5/copy or both for $8.50. Prepaid orders should be sent to: Publications Department American Civil Liberties Union 122 Maryland Avenue, N.E. Washington, D.C. 20002 (202) 544-1681 Copyright 1992 by the American Civil Liberties Union. All Rights Reserved. ISBN 0-86566 0581 Table of Contents I. Introduction II. Welcoming Address III. Special Conference Addresses Mary Frances Berry: The Bicentennial of the Bill of Rights and the End of the Cold War: Time to Dismantle the National Security State Konstanty Gebert: The Resurgence of Democratic Ideals Around the World Hon. Ronald V. Dellums: Achieving the Democratic Ideal IV. The Domestic Legacy of the Cold War Morton H. Halperin: The Legacy of Cold War Restrictions on Civil Liberties Lillie Albertson: McCarthyite Persecution: A Personal Account Milton Schwebel: Comments on the Cold War and the Human Mind Gerald Horne: The Cold War's Impact on the African American Community V. Unlocking the Doors to Government Information Page Putnam Miller: Secrecy and the Accurate Recording of History Roger Pilon: An Insider's Story Turna Lewis: The Impact of Secrecy on Federal Government Workers Tim Weiner: Exposing the Pentagon's Secret Budget VI. A Constitutional National Defense Harold Koh: The War Powers Debate Michelle Benecke: Discrimination Against Women and Homosexuals in the Military Prexy Nesbitt: The Government's Secret Wars Rev. Bill Yolton: The Selective Service System VII. Free Trade in ideas - An Idea Whose Time Has Come Choichiro Yatani: An Unexplained 44 Days of Detention John Terzano: Restrictions on Travel to Vietnam Bari Schwartz: Legislating the Free Flow of Information VIII. Government Surveillance and Erosion of the Fourth Amendment Mark Lynch: Erosion of the Fourth Amendment Judith Krug: The FBI's "Library Awareness" Program Nkechi Taifa: The FBI'S Covert Operations Against the Black Movement Jinsoo Kim: The CISPES Investigation IX. New Threats to Civil Liberties Gara LaMarche: Press Censorship Gregory Nojeim: Targeting of Arab-Americans Robert Borosage: From Cold War to "New World Order" X. Looking Toward a Post-Cold War America Hodding Carter III: The Media in an Open Society Ron Daniels: Fighting for a Peace Dividend H. Jack Geiger: Cleaning up the Environment XI. Building A Movement to End the Cold War at Home and Resist New Threats to Liberty Steve Rickard: The Legislative Agenda Anne Braden: A Grassroots Approach Loretta Williams: The Need for Unity Appendix A. Selected Bibliography Appendix B. Glossary of Sponsoring Organizations __________________________________________________ Ending the Cold War at Home: Introduction While the end of the Cold War abroad has opened new possibilities for U.S. foreign and domestic policy, the national security state erected in its name remains very much in place, hindering democratic decision-making and infringing on our civil liberties. Recognizing the need to eliminate Cold War era laws and practices that impair constitutional rights, more than sixty civil liberties, civil rights, professional, peace, labor, religious and student organizations joined with the ACLU to sponsor a National Conference on Ending the Cold War at Home. The Conference was convened in February, 1991, bringing together over 250 participants to examine in depth the many restrictions that were imposed in the name of national security which remain in effect. Participants considered broad strategies -- including legislation, litigation and public education -- for removing these restrictions and for resisting new threats to liberty arising in the post-Cold War period. The Conference was the first step in the development of an ongoing ACLU Project on Ending the Cold War at Home. Other components include the dissemination of a Public Policy Report, and work with a coalition of groups that emerged from the Conference. This volume contains the abbreviated text of the speeches and papers presented to the Conference. __________________________________________________ Welcoming Address: Norman Dorsen Outgoing President, American Civil Liberties Union This conference has a very simplistic message. The issues are familiar: government secrecy, restrictions on travel, security clearances with excessive requirements, government surveillance of civilians, covert operations and more. There is the familiar litany, in other words, of violations of civil liberties with varying degrees of intensity to which we have grown, I am afraid, too accustomed over the many years of the Cold War. The purpose of this conference is to explore these issues on the, I hope, not too optimistic assumptions that the Cold War is in fact over. We have learned over the last eighteen months there seems to be no end of surprises that the world has in store and I have no doubt there will be further surprises. So many of the issues we are talking about today are, most regrettably, vestiges of the McCarthy era in American history. The government, while it has learned some lessons, has not learned the right lesson -- to eliminate these vestiges, to eliminate everything that stands in the way of a truly free society. As we meet, of course, there is the unexpected wild card of the Gulf War. The ACLU, takes no position on the war itself, although we took a very strong position on ensuring its constitutionality. We all know that civil liberties suffer in cold war and they most assuredly suffer in hot wars as well, with government management of news, restrictions on travel, ethnic and racial targeting and a host of other civil liberties issues with which we have just begun to grapple. For so long we used to quote the supposition that if the Bill of Rights were put to a vote of the American people it would not carry. In a sense that should not be surprising, because the Bill of Rights is not a majoritarian document. The whole point of the Bill of Rights is to protect the dissenter and the minority. And yet it tugs at my heart that so small a percentage of the American people recognize that they are not receiving all of the news that they should be receiving, even during wartime. __________________________________________________ III: Special Conference Addresses Keynote: The Bicentennial of the Bill of Rights and the End of the Cold War Dr. Mary Frances Berry I 'm so pleased to see so many of you here today. When I told one of my colleagues who serves with me on the Civil Rights Commission -- who is not of the same political persuasion that I am -- that I would be late to a meeting today because I had to speak at this conference, he said, "Well, that's ridiculous! Why should you people be doing that when we're in the midst of a war? Why don't you have a conference to rally around the flag, support the troops in the Gulf and to say that right now you ought to be tightening restrictions on freedom of expression rather than on national security." So I guess from his perspective it is a matter of great courage for anybody to show up at a conference like this and have the temerity to speak at it. I believe that while some think this is the worst of times to be discussing these issues, it is probably the best of times, which is what I told him. In addition, as I reminded him and I am sure all of you are aware, most of us here are accustomed to being embattled. That's nothing new. I think there are two things that ought to come out of this conference. One is to determine how we end the restrictions on freedom of expression and the steps that can be taken to do that. There's another one, which is to figure out how to gird our loins, so to speak, for the struggle that is ongoing and will intensify as the war goes on -- to confine people who want to express their point of view. That is an urgent crisis. We have a war which I, as an historian, think about in terms of something Barbara Tuckman said in the March of Folly, which is that "old men will continue to make decisions to go to war in which young men and women will be killed" and that we should remember that our enemy yesterday is our friend today and the enemy today that we must pull out all the stops to defeat, tomorrow will be the country that we will be trying to support and make strong for some geopolitical reasons. But I, as an historian, know something else, which is that the only thing we learn from history is that some people refuse to learn anything from history. *** Ironically, as we come together to discuss how to end the Cold War at home, we find ourselves in the midst of a "hot war" abroad. As hostilities escalate on both fronts, it is easy to forget that this time last year we were breathing a sigh of relief at the end of the Cold War, one of the most traumatic periods in our nation's history. It is also easy to forget that a few short months ago people were talking about the dream of a "peace dividend." They asked me to be on a public television show to discuss the peace dividend. I said to them that they wouldn't want me to come because I'll explain how we won't have one. We are also in the midst of celebrating the Bicentennial of the Bill of Rights this year. *** This is a harrowing moment in history. But it didn't start on August 2, 1990 when Iraq invaded Kuwait. It did not begin on November 8, 1990 when President Bush unilaterally changed the mission of U.S. forces deployed in Saudi Arabia to an offensive one, nor on January 16, 1991 when that offensive began. The shaping of this moment in history has been in the making for nearly fifty years, which is the 'why' of this conference. For nearly fifty years we accepted many dubious practices as necessary to deal with this enemy that Ronald Reagan later called the "evil empire." These practices have become bad habits that create excessive behavior in wartime and unacceptable behavior in times of peace. Bad habits that are manifesting themselves in this hot war, and if we don't start breaking them, will continue to undermine our democracy long after Saddam Hussein is just a dim memory. For nearly fifty years we waged an 'ideological' war which was at the core of every foreign policy decision and many domestic decisions as well. For nearly fifty years we demonized the enemy until it became the evil empire. This demonization of the enemy, which has historical antecedents, was easily adapted to a new enemy in the persona of Saddam Hussein. For nearly fifty years the fabric of the Cold War has been deeply entrenched in our national life, woven through all of our institutions, distorting the democratic process and defining the limits of political discourse. Using claims of national security as an incantation to overwhelm all reason and opposition, the executive branch concentrated awesome political power in its hands. What has happened is a dramatic tilt in the constitutional balance of power. We are here today in this hot war because the Cold War has not ended at home and its domestic effects are being exacerbated. One concern is presidential power to engage the nation in offensive military action without the prior approval of Congress, which has become commonplace. One can see when the president began to commit troops to Saudi Arabia, that the results were almost a foregone conclusion as the steps were taken one by one. If you follow the path of the decision, you will see that before a single vote was cast in Congress, the debate was framed as one of "support for our troops in the desert." And what answer can anyone give after that commitment has been made. A second concern that troubles me deeply as an historian is institutionalized secrecy. It even goes so far as presidents deciding to conceal information from Americans until after elections, as Mr. Bush did about his decision to commit us unilaterally to this war. Because, in the name of national security, Congress has allowed the President to take the nation to war secretly, through covert paramilitary operations in Asia, Africa, and Latin America, we have found ourselves involved in a series of hot wars as regional conflicts heat up. Because, in the name of national Security, the FBI and other intelligence agencies controlled by the executive branch have amassed tremendous extra-constitutional powers, the FBI felt it could, with impunity, target Arab-Americans for questioning and surveillance. Because in the name of national security, protesters against US. policy in Central America, Southern Africa and the Middle East have been systematically harassed, spied upon and subjected to secret counterintelligence investigations, including warrantless searches of their homes and offices, people who oppose the Gulf War ought to be prepared to have the same thing happen to them. War, by definition, expunges human life. War is also the greatest threat to civil liberties. Another thing that concerns me very greatly is the government taking actions to preempt popular opposition to this war through censorship of the press. Pentagon censorship is keeping the American people from knowing the real nature of the war that is being fought in their name. Also concerns about the targeting of Arab-Americans by the FBI could have the effect of intimidating and silencing many potential critics of Administration policy. We also know that civil liberties of Americans serving in the Gulf have been infringed. The military is administering experimental drugs to soldiers without their informed consent. The government has been extending the term of service of volunteers and reservists without their approval. Service persons are discouraged from participation in religious activities. Also, mail to and from Saudi Arabia is censored. And when the shooting stops, U.S. citizens could still be prohibited from traveling to Iraq if the economic embargo remains in place, and Iraqis could still be refused visas on "foreign policy" grounds to deliver speeches here in the U.S. to tell us about their views. First Amendment freedoms in this country were a major casualty of the ideological war against communism. It follows that among the first victims of "Operation Desert Storm" have been the guardians of the First Amendment. Under the Pentagon's rules for press coverage we have combat "pools" that go out with the units in battle and then have to submit their reports to the authorities before they're transmitted. *** It is precisely in times of national crisis such as war that the freedom of the press and the public's right to know is most critical. Despite the massive volume of coverage, if you try to keep track of content, you will find there is very little. We have no sense of the human toll of the attack on Iraq. We're not sure how many people were killed or injured in Saudi Arabia or Israel. Press restrictions enable the White House and the Pentagon to manage the public's perception of the war. We are receiving a government-shielded version of the hostilities: what we see is a triumphant, high-tech war fought on bloodless battlefields. From military and government spokespersons we receive confusing and contradictory reports that frequently conflict with statements that we were assured were true only the day before. The reason for restricting the press seems alarmingly obvious: fear that reports and pictures of combat in a desert war would have an adverse impact on public opinion. Hiding behind "security" concerns, the government seeks to minimize the political price of sending American troops into combat, and to protect the military from criticism and embarrassment. As a result, the haunting and unforgettable images of battle will be deceptively blurred. There were no such restrictions on the press in place during the entire Vietnam war. One of the things I did in my life was to be a reporter in Vietnam one summer. I was at Michigan and was in the anti-war movement and I decided to go see for myself. So I got accredited as a reporter by a bunch of newspapers and I went to Vietnam and traveled all over the country. I know how much we laughed in Saigon when the "Five o'clock Follies" came out every day from the Defense Department to give us a briefing about what had been going on that day. And we laughed because there was always some reporter in the room who had just come from wherever that was and who knew that what they were saying was not the truth. The modern-day precedent for censorship was set by the Reagan Administration's handling of the media during the 1983 invasion of Grenada. The invasion was documented by Army reporters and military cameramen completely, and the civilian press was kept out. Following in the footsteps of his predecessor, Bush portrayed the 1989 invasion of Panama as a flawless, nearly bloodless conflict. Not a single photograph, strip of film or eyewitness account was published about the actual combat. More than a year later , we still don't know the cost of "Operation Just Cause" in Panamanian lives. I guess we're not even supposed to care. As for "Operation Desert Storm," it has been decided that there will be no solemn arrival ceremonies -- and no press coverage -- for people who are killed in action. A military spokesman defended this decision by saying, "There would be too many ceremonies," and therefore they don't want anyone to cover them. Another concern is these interviews of Arab-Americans which are a shameful and ominous aspect of the Administration's war on civil liberties. If one watches all the things they are doing with Arab-Americans it increases the likelihood of people stereotyping Arab-Americans and there have been acts and threats of violence which have multiplied exponentially since the beginning of this crisis. *** When we examine the FBI's explanation for why it is doing all this it says they're trying to protect them from possible violations of their civil rights. Those of us who have been around a while think about another haunting specter, the post-war experience of African American activists, whose protection was also within the FBI's jurisdiction. We also think about the civil rights movement and the people who were involved there and what happened to them. For, when Viola Liuzzo was gunned down in Alabama while on a Freedom Ride in March 1965, one of the men in the car brandishing a gun was an FBI informant. When William Bergman was beaten and crippled four years earlier, the FBI furnished the information that made the attack possible and stood by, knowing that the local police had made a deal with the Klan giving them fifteen minutes to attack. When Martin Luther King made his "I Have a Dream" speech at the Lincoln Memorial in 1963 the FBI was there, not to protect him, but to assess the danger he posed to "the established political and social order." The next day J. Edgar Hoover convened what can only be described as a council of war to discuss how to deal with what the Bureau called the demagoguery of Dr. King. By then the FBI had been at war with the civil rights movement for several years. Its objective, spelled out most clearly in the memorandum establishing the special Counterintelligence Program dubbed "COINTELPRO - Black Nationalist," was to "prevent the cohesion and growth of the African-American movement, to keep it from gaining respectability, and to prevent the rise of a Black Messiah," someone who could unify, electrify and lead the movement. The most intense operations were directed against groups like the Black Panther Party, SNCC, CORE, the Nation of Islam, the National Welfare Rights Organization, the League of Black Revolutionary Workers, the Republic of New Africa, Black student unions, the Dodge Revolutionary Union Movement and many local Black churches and communist organizations struggling for decent living conditions, justice, equality and empowerment -- all in the name of national security and the fight against communism. As is true in so many other contexts during the Cold War era, anticommunist ideology was so pervasive that it set the terms of debate on all sides of the civil rights issue. On the one hand, people who opposed desegregation defamed civil rights advocates by calling them "subversive" and "red" and "pinkos" and worse. Many of the measures used against Communists, such as the Internal Security Act, were adopted on the state level in the South to use against Blacks. On the other hand, while constitutional rights were being trampled upon by all three branches of the federal government in the name of fighting communism, the U.S. Attorney General filed a pro-civil rights brief in Brown v. Board of Education. This is anomalous unless you understand it was filed by the Truman Administration in this case because of the view that "it is in the context of the present world struggle between freedom and tyranny that the problem of racial discrimination must be viewed." While the global situation we face -- the hot war in the Gulf and the Soviet crackdown in the Baltics -- may appear to be a major obstacle to our call to end the Cold War at home, it still may be possible to move forward. A month ago, for the first time in half a century, the President sought Congress's express authorization to go to war. That's the glimmer of hope. While asking Congress to vote was clearly politically expedient for Bush, a not irrelevant consideration was the fact that, while he was proclaiming to the world the prerogative of the United States to defend international law, he was disregarding our own Constitution. So that vote, whatever one's view of the outcome may be, marks our first victory in ending the Cold War mentality at home. Maybe it will be more difficult in the future for presidents to credibly assert unilateral war making authority. President Bush has said that the goal of his Gulf policy is to put in place a "new world order." I think he picks these terms indiscriminately without any awareness of context. He never learned what Howard Thurmond, the distinguished Black theologian, said in his time: "Text without context is mere pretext." Bush doesn't put anything in context. But his new world order, and its "kinder, gentler" domestic counterpart, bear striking resemblance to the old Cold War modalities. If we are to realize the goal of the drafters of the Bill of Rights -- to protect individual liberty against governmental tyranny -- then we must end the Cold War at home. We must dismantle the national security state, and we must renew our demand for a peace dividend because it is moral and it is just. It is precisely at crucial moments like this that our work is most desperately needed. There is never a wrong time to fight for the Bill of Rights. ______________________________ Mary Frances Berry is a member of the U.S. Commission on Civil Rights. She is a founder of the Free South Africa Movement and a Professor of American Social Thought and History at the University of Pennsylvania. ____________________________________________________________ III: Special Conference Addresses The Resurgence of Democratic Ideals Around the World Konstanty Gebert The title of my address strikes me as possibly over-optimistic. At least twice over the last 45 years, we have witnessed global transformations which were then interpreted as proof of the "resurgence of democratic ideals," but which later disappointed those who had invested their hopes in them. *** This time, however, the prospects for a resurgence of democratic ideals seem so much brighter. For the first time national self-determination, social change and democratic development seem to be in harmony, and mutually supportive.... The end of the Cold War has instilled hope in those who struggle to expand democracy and deepen social change in their own countries. *** Power politics was not an invention of the Cold War, but preceded it and has survived it. The international environment is more supportive of democracy than before, but certainly this does not mean that the future of democracy is assured. Democracy itself is a risky proposition.... It is about means, not ends. It is a good method for avoiding certain undesirable outcomes, but does not promise much in the way of a better future. The appeal it has for long-oppressed populations has more to do with their rejection of oppression than with their endorsement of democracy as such. I would like to expound on that, drawing on the Polish experience. Over the last five decades, the immense majority of Poles have been deprived of basic civil and sometimes even human rights.... Not until 1989 did Poland concede basic rights to its citizens. Solidarity emerged as the victor of a long struggle, fought under the banner of democracy. Democracy was simply understood as the rule of the majority; as long as the vast majority of Poles rejected Communism and supported Solidarity, this caused no theoretical or practical problems. But Solidarity's unity was intimately connected with the existence of the Communist enemy. With the enemy gone, unity disappeared, and the question arose: Who speaks for the majority of the Polish people? The simple democratic answer is [to] hold an election and find out. The results are inconclusive, and worrying. In the semi-free parliamentary elections of 1989, Solidarity won an astounding victory, taking all but one of the parliamentary seats it could stand for under the restrictive law. But the election was more of a plebiscite: it was about what the country did not want -- Communism -- and not about what it wanted.... More important still, forty percent of eligible voters did not bother to go to the polls. *** In the absence of a clear-cut electoral majority other spokesmen claim to speak in the name of the Polish people. The Catholic church is one. It represents the major element of continuity in Poland's tormented history.... It grants itself a right to intervene in all aspects of national life in order to keep them consistent with its teachings. *** The effects are there for all to see: a law banning abortion has been passed by the Senate; religion has been reintroduced to the schools; there is talk of banning divorce. President Walesa presents himself as the embodiment of Solidarity's struggle, and of Poland's age-long struggle for independence. He has embarked on a course of political changes, which are as sweeping as they are unconstitutional. Democracy in Poland is in even deeper trouble than these remarks would imply.... When democracy became political practice, the passion it inspired was gone, and people started turning to other ideologies.... Nationalism and religious fundamentalism are two such ideologies. I believe some of my remarks can be applied to countries other than Poland.... And to avoid dampening the enthusiasm we feel as we observe entire nations moving to democracy, we must also be aware that though the odds are better than before, the stakes are just as high. ______________________________ Konstanty Gebert is a political columnist and contributor to several Polish newspapers and magazines. He was one of the most important voices in the underground press after martial law was declared in Poland in 1981, writing under the pen name of David Warszawsla. __________________________________________________ III: Special Conference Addresses Achieving the Democratic Ideal The Honorable Ronald V. Dellums I want to speak against the backdrop of the Persian Gulf War which, in my opinion, is the latest manifestation of the national security state and an extraordinary threat to the achievement of democratic ideals in our society. I came to Congress against the backdrop of the civil rights movement, the Vietnam War, the struggle for the liberation of women, the struggle for the preservation of the environment, the struggle for the protection of consumers and workers. And my constituency sent me here having made a solemn contract to walk on the floor of the United States Congress, and in the context of that institution, struggle as diligently as I could for peace and for a just society -- economic and human justice. The first two years I served on the Foreign Affairs Committee because that was the only opening I could obtain. I'm a social worker by training. I really, in one sense, came to Congress to write new programs to address the problems of human misery because many of us in the Black community wanted to go forward to challenge and to change policy so we could reach back to our communities and help our fellow sisters and brothers. So I really came to write new policies to eradicate poverty, hunger, disease, homelessness, hopelessness, unemployment, the myriad of human problems that confront people and force them to experience great human misery. I got up on the floor many times trying to raise my voice as strongly and effectively as I could for peace and for radically altering the nature of American priorities. But on numerous occasions my colleagues would come up to me after I had finished speaking and would say I spoke eloquently to the priorities and the human condition, but you are extremely naive about the dangers of the world. You are extremely naive about the communist menace, the domino effect. Yes, we do want to solve the problems of people in this country but these problems pale in the wake of the threat of the Soviet Union, the threat of communism over-running the planet. We have to get on with that business before we can deal with the priority issues that you so powerfully raise. Then when I was re-elected in January 1973, I now had two years seniority. I now had the opportunity to seek other assignments. I thought about a principle I had learned in graduate school in social work-- you start where people are, not where they ought to be. This country is not going to address these problems until we deal with the notion of the national security state, until we deal with the notions of the Cold War that has masqueraded as American foreign policy for over forty years. After some serious deliberation I sought membership on the House Arms Services Committee. But I didn't come to Congress to get in bed with MX missiles and Trident submarines and cruise missiles and B2 bombers. I came to do something very different but I realized I could never get back to that until I challenged them where they were. So I decided that I would never let any other member of Congress define me as naive about the world, naive about the needs of our military, so I went on the Arms Services Committee to learn Pentagonese and missile capability and strategy. To be as competent as possible in these arenas, to challenge them in the citadel of militarism. So I went on the Arms Services Committee to raise my voice in the name of peace, to try to challenge increasing military budgets, greater militarization of America and re directing the human priorities of this country. For eighteen of the twenty years I have been in Congress I have been marching up that hill. In 1971 only a handful of members of Congress were willing to stand in opposition to the Vietnam War. Public opinion had not arrived at being in opposition to the war in Vietnam so debate in the Congress was virtually silenced. But some of us continued to raise our voices, in concert with other people who were the dissenters and the protesters and the educators. We struggled and we educated America to the point where we affected public opinion, and public opinion, in turn, forced the Congress of the United States to end the war in Vietnam by ending its funding base. We started to march forward. But then came Ronald Reagan with massive and rapid expansion of our military budget. In 1971 the military budget was 79 billion dollars against the backdrop of the Vietnam War. When Ronald Reagan left office we were spending in the neighborhood of 300 billion dollars a year on the military budget. We saw a nation move from the policy of nuclear deterrence to nuclear war-fighting capability where we embraced the ultimate oxymoron -- winning a nuclear war. We see draconian cuts in social programs, massive step-back from a commitment to address the human misery of our fellow human beings. *** Then last year the most incredible thing [happened]. We started to win. The Berlin wall came crumbling down. Eastern Europeans and Western Europeans started to marry each other. Unification. We had an invasion of Eastern Europeans into Western Europe not to wage war, but to shop. For a moment all of us said we finally lived long enough. We see the Cold War crumbling. We saw Margaret Thatcher, no left-wing extremist by any stretch of the imagination, saying that the Cold War was over. We started to quote her. The chair of the Armed Services Committee accepted the Dellums Amendment to kill the B2 bomber, my heart swelled. Tears came to my eyes. We were about to win. And maybe after a while I can get back to why I really came to the Congress. Because if the truth be known we are on the verge of losing an entire generation of our young people, killing and dying in the streets of America. So there's a great ray of hope. But then Saddam Hussein crossed the borders into Kuwait. President Bush discovers Saddam Hussein in a very different way. A year ago not one of you in this room would have accepted a bet that we would be at war. We were drunk with the idealism that finally our perspective was beginning to win, that the reality of the Cold War was crumbling. President Bush put American troops into Saudi Arabia, garnered a coalition ostensibly stopping the aggression beyond that point. a early all of us have a responsibility to raise our voices in opposition to the aggression because any sane and rational human being must challenge force and violence and aggression as a way of solving problems. Then President Bush took it to the next step. He escalated the troops. I knew then that we were going to war, that our nation was engaging in what I perceive to be the immoral strategy of brinksmanship -- threatening war as a way of achieving peace. A high-stakes gamble because if you lose, hundreds of thousands of people are placed in harm's way. On October 9, after sitting down and writing what I would like to think was a very articulate letter to the President, 31 members of Congress joined me in sending that letter to the President. In that letter we raised concern about this escalation of troops, about using brinkmanship as a tool of foreign policy, about moving from a defend-and-deter posture to offensive military options. We said that we should rely more heavily on sanctions, engage in greater aggressive diplomacy, that we ought to use international institutions such as the International Court of Justice and the United Nations as a way of attempting to solve these problems without force and violence and without war. And we said to the President that our reading of the Constitution said that you do not have the power to take us to war. I didn't receive an answer from the President until November 6. The letter read, in part: "sanctions are working effectively." I called together a meeting of concerned members of Congress and reached out to members to talk about where we were and what our response should be to it. And I remember in the room I referred to myself as a peace activist and I started to give my thumping speech about peace and our responsibility to challenge this madness. One of my colleagues' original response was to recoil from that comment. At that moment I had to mature very quickly because it wasn't about Ron Dellums taking a posture, it wasn't about the handful of us who had the courage or the tenacity or the freedom to stand up and speak out without compromise, but it was whether we had the capacity to pull together a coalition strong enough to actually to stop this war. Using social work skills I appointed all of the dissenters in the room and the people who had questions as drafters of the statement that the coalition could rally around. Later that evening they came back with an extraordinary statement. I knew that I could sign whatever they wrote but I wasn't sure some people could sign whatever I wrote. These folks wrote that they opposed the offensive use of force in the Persian Gulf, we question this incredible build-up, we think sanctions ought to work, we think greater diplomacy ought to be used, and finally we say unequivocally that if you choose to use force you must come to us under Article I, Section 8 of the Constitution. Eighty-two people signed that letter in the waning days of the Congress. We simply ran out of time. We asked for an emergency meeting with the Speaker, which we were granted. We gave the Speaker that statement and wanted him to present it to the President of the United States and let the President know that there is a concerned and considerable voice in the Congress (a) in opposition to war in the Persian Gulf, (b) in support of economic sanctions and diplomatic efforts, and (c) who state resolutely that the President does not have the power alone to take us to war. Then the Congress adjourned and we went our various ways. *** One day my special assistant called me and delivered a message from one of my significant others in the Congress that it was his considered opinion that he thought this Administration was marching to war. I told him to get in touch with the Center for Constitutional Rights. I said I'm not a lawyer but have them look at the question of whether or not I would have standing, either alone or with a group of my colleagues, to file for declarative relief and injunctive relief on the other hand to stop the President from going to war on the grounds that to do so would violate my rights and prerogatives as a member of Congress under Article I, Section 8 of the Constitution. And to my pleasant surprise the lawyers came back and said this was a fantastic case. That most of the time we are litigating after the fact and this was now before the fact. Let me tell you what my strategy was. One, I wanted to throw a monkey-wrench into the process because millions of American people were being marched down the path to think that war was inevitable. Two, to focus the American people's attention on the reality that this is a constitutional form of government because if we could demand rigid adherence to the Constitution with respect to the declaration of war and that the decision would come to the Congress of the United States, the Congress would weigh the mail, count the phone calls, send out questionnaires, spend money polling public opinion every day. I felt alone we could not stop the President from going to war because in many ways the President is insulated from public opinion, but I knew that the Congress was not. I knew that if we could ever force the President to have to ask and that the Congress would debate the question, the probability of victory would increase at a tremendous level. The judge, while he didn't give us injunctive relief, did say (a) the court was not prepared to read out of the Constitution Article I, Section 8, (b) that the Congress alone had the right to declare war, (c) that for the U.S. to attack offensively would, in his estimation, be a definition of war under the Constitution. He didn't give us the injunctive relief because at that moment the court didn't see what I saw: the imminent nature of this war, but he did underscore our position. Then he went further to say that while the Congress has the power as a practical matter, sometimes the Congress sidesteps its constitutional responsibility, for politically-sensitive or expedient reasons chooses not to implement its constitutional prerogatives. He thought that while the 54 of us were significant, that we did not comprise the majority of the Congress. So that if the majority of Congress joined me in the lawsuit, or passed a resolution saying we want to exercise that prerogative of deciding for or against the use of force, that would signal to the court that the Congress in this instance was prepared to deal with it. On that level I want to say to you that we won. We forced the President to ask for the authority to use force and we forced the Congress to debate the issue. Then I was hoping on America because I want to come to a very painful point. We missed an incredible moment. Because our strategy worked to that point. We didn't educate and mobilize quickly or effectively enough, maybe because many of us thought that going to war with Iraq was so crazy. For whatever reason, we didn't quite get the young people mobilized quickly enough. On the vote on exercising constitutional prerogatives, we are now on record saying we reserve unto ourselves the constitutional prerogatives. The President presented his request for the right to use force. We lost 250 183. A 67 vote difference. Thirty-four votes the other way and the Congress of the United States would have gone on record opposing the use of force. If you look at history, we came close. We lost an important moment. What my lawsuit was designed to try to do was to say to you: get mobilized quickly. I believe we will look back at this moment and realize we lost an incredible opportunity. I believe the consequences of this war are so ominous and so far-reaching. We were trying to say to America that it's easier to stop a war before it starts than after it starts. Here we are on the verge of a land war that has the capacity to kill at a level that would stagger the imagination. I continue to believe that there is an alternative to killing and dying as a way of solving international disputes so I mounted the podium during that debate and challenged war. I said to the Congress to be neither fool nor knave. The decision we're about to make is tantamount to a declaration of war. Each member ought to vote on the basis of his or her conscience. The test of conscience is the greatest test because it asks the most fundamental question: what is right. In the aftermath of this war what will they seek? Smarter bombs? More of them at the expense of resources that we desperately need to address the human misery of our people? Even though public opinion is not with us at this moment and even though the point of view that I articulated is in the minority, we have a political and moral imperative to continue to raise our voices to stop this war. Every day that it goes forward the potential devastation increases and the near-term and long-term implications expand. We must now begin the painful effort to educate American people. It will be more difficult now than it was before the war started. Now you have this "who are these unpatriotic people dissenting. These people in the streets don't represent the majority." Well who ever said you have to be in the majority in order to dissent? Protest and demonstration and dissent is an integral part of American life and we must demand the right to continue to do that. How can you applaud the Chinese who put their lives on the line in Tiananmen square? How can you applaud the people in Eastern Europe who brought down the Berlin Wall by the sheer power of their numbers and their desire to gain control of their own destiny, and then suddenly turn to our own people and say 'You cannot dissent." There's something fundamentally contradictory in that. We must educate our community about the havoc and the death and destruction. We use euphemisms. Rather than killing we call it "collateral damage." American people need to know that war at its basis is suffering and dying and killing and stench and bleeding and breaking. We must say to America that censorship denies you as a people in a democratic society the right to know what you need to know to make rational and intelligent decisions. Our job will be more difficult, sisters and brothers. But we have no other alternative but to stand out there, to continue to raise our voices, to continue not only to talk about peace in the Persian Gulf but to withdraw from the mentality of war. We now have the opportunity to look at the future right now. We are seeing modern warfare and we have to educate American people not to become enamored of the technology but to be frightened of it. We have to take the world to a better place. Here's our chance to say there's a better way. To say that solving the problems through peace and diplomacy and international cooperation and international institutions is the way to go and that high-tech weaponry will not be our salvation but our demise, and that big military budgets will not be our salvation but our demise. Do not construe my remarks to mean that we should not continue to remain resolute, optimistic and idealistic. We can still bring change. ______________________________ The Honorable Ron Dellums represents California's 8th Congressional District in the House of Representatives. Dellums was the principal plaintiff in the lawsuit to enforce the constitutional mandate granting Congress the authority to declare war. __________________________________________________ IV: The Domestic Legacy of the Cold War The Legacy of Cold War Restrictions on Civil Liberties Morton H. Halperin The one way it is clear the Cold War is over is that the Soviet threat and the view of the international communist conspiracy has receded. It is difficult now to argue that we face the same threat that was used to justify previous restrictions. Congressional hearings and reports during the Cold War led Americans to believe we were surrounded by an international communist movement which threatened the very survival of our nation. Some of the worst restrictions were removed as the McCarthy era ended but some are being used in the Gulf War, which clearly illustrates the danger of allowing such restrictions to remain in effect. The FBI has vastly stepped up its program of surveillance targeted at Arab-Americans [who] engage in lawful political activity, because the Bureau assumes, as it previously assumed with the civil rights and anti-war movements, that anyone who engages in lawful political activity will "so quickly become frustrated that they will turn to illegal and terrorist activity." This program includes Fourth Amendment rights violations in the form of wiretaps, illegal searches, and harassment of people in the Arab-American community. Such FBI power is based not on legislation but on Attorney General guidelines which authorize the Bureau to engage in domestic security investigations and foreign counter-intelligence investigations. What are needed, as has been clear in reports of the House and Senate Intelligence Committees, are guidelines enacted by Congress. These guidelines need to be public and need to be based on two basic principles: (1) the government only investigates criminal activity, and (2) the government may not investigate or collect information about lawful political activity. These principles certainly are not in the operational procedures and activities of intelligence agencies. Another area is the war powers question. Forcing the Congress to vote -- which is literally what happened in the Gulf because of public outcry -- was a relatively small victory because that vote came late in the process. The Constitution requires that security commitments be made by Congress either through legislation or treaties. Neither were done. The President dispatched troops to the Middle East to defend a country with which we had no treaty, without consulting the Congress and without public debate. We have come so far that the initial deployment of troops to the Persian Gulf elicited no concern that the President was violating constitutional powers. We have the legacy of covert operations. I believe that behind every international crisis of the Cold War period was a triggering event of a covert operation. If you go back to events that led first to the Iran-Iraq war and then to the current crisis, you will find some covert operations we know about and others we do not know about which we will later learn played a critical role, as it did in the Korean War and a number of other episodes. We have let the environment be corrupted by national security claims. For years nuclear weapons production facilities were exempt from environmental protection laws and the Supreme Court upheld a general exemption from environmental protection laws when the government mumbled "national security." Congress authorized the President to waive environmental laws when "necessary for national security." The Pentagon has been given the authority to avoid normal requirements of environmental impact statements. The way the Supreme Court has dealt with this issue is but one manifestation of a very serious deterioration of the Court's willingness to take on the executive branch when it invokes claims of national security. There has come to be a tradition in the judicial branch that when the nation is at war, courts will defer. Finally, there is pervasive secrecy and acceptance of prior restraints in the press and acceptance of the closing of a base where bodies return, along with an acceptance that the government can tell us which reporters can cover the war. All this makes it dear that the legacy of the Cold War restrictions are having an important effect on the way the public can learn about, and dissent from, the current policies in the Persian Gulf. There are two tasks which we have: (1) fight those restrictions now, and (2) come away with a determination that we will remove the legacy of the Cold War and the way that it has poisoned the political and constitutional processes of this country. ______________________________ Morton H. Halperin is Director of the Washington Office of the ACLU and the Center for National Security Studies. He was a senior member of the National Security Council staff in 1969. __________________________________________________ IV: The Domestic Legacy of the Cold War McCarthyite Persecution: A Personal Account Lillie Albertson The history of any struggle is made up of numerous small stories. Mine is just one of many. My husband, William Albertson and I were members of the United States Communist Party. I joined the Party in 1948. Bill had been a leading figure and functionary in the Party for many years. He had joined the Party in 1927 as a student at the University of Pittsburgh. Because we had chosen to join a left wing movement committed to socialism, our family and friends were constantly harassed, persecuted and prosecuted by the United States government. We broke no laws except the unwritten rule against advocating for socialism. Our telephones were tapped for years. Bill and I were followed. FBI agents would approach us, our co-workers and bosses, telling them that they had "Reds working for them." Not surprisingly, we would be let go with no explanation. My role in the party was relatively unimportant. Bill, on the other hand, was on the national committee. This singled him out for special attention by the FBI. My husband was hounded constantly. In 1953 he was prosecuted under the Smith Act on a warrant issued from Pittsburgh and was one of the "Pittsburgh 6" Smith Act victims. Bill was sentenced to 60 days in jail for contempt of court during the trial, for refusing to name others present at a meeting. He told the court: "My wife and I have tried to raise our children in the best traditions of the American labor movement. We have given them a hatred for spies, stool pigeons and scabs. I could not look my children in the face if I violated those traditions." My husband's words were ironic in their prophesy. Bill was convicted, along with four other defendants, on the Smith Act charges of conspiring to teach and advocate the violent overthrow of the government. The convictions, based on the testimony of seven FBI informers, were later reversed by the Supreme Court when the government admitted that its key witness lied under oath. The witness wasn't prosecuted for perjury and the government chose not to retry the case. Essentially it took four years, sixty days in jail for Bill, and who knows how many tax payer dollars for the government to admit that the charges against my husband and the others were falsehoods they created. In 1962, Bill was hauled before the Subversive Activities Control Board by then Attorney General, Robert Kennedy. This was the first step in a proceeding under the McCarran Act requiring Bill to register as a member of the Communist Party. Since Bill had broken no laws, the government turned to harassment instead of indictment. This was a deliberate and secret attempt to silence us. You can fight charges in a court of law, but how does one fight a secret army who uses harassment, slander, rumors and forgery as their weapons of choice? Finally, one June evening in 1964, it all came to a head. Three men from the party came to our home. They were co-workers, friends, comrades of Bill's. They took my husband for a walk. They would not speak in the house. Upon their return I could see something was terribly wrong. My husband was not the same man that had walked out with them earlier. They stated they had positive evidence that Bill was an informant for the FBI. They showed me a note, claiming it was Bill's handwriting. It had been found in a car in which Bill had been a passenger a few days earlier. Although the writing was similar, I knew it was not Bill's. I had known Bill for 15 years, but I could never read his writing. Whoever wrote this letter had taken great pains to make sure it was legible. The note was addressed "Dear Joe," and appeared to be an informer's report to his FBI contact. It was signed "Bill." They insisted this note proved Bill was guilty and that I must take our child and abandon him. Knowing the character of my husband, I knew these accusations were false. Bill would sooner die than inform on others. Bill, his 80 year old mother and I were expelled from the party. Bill was publicly identified-Informer, Stool Pigeon, Police Agent-in the world press. We were spat upon, threatened and assaulted by our former friends and associates. Bill was fired from his job. Our child was also threatened. Our home was burned. Friends would have nothing to do with us, for fear of guilt by association. We were totally alone...isolated. The emotional effect this had on our family was catastrophic. Bill researched, wrote, pleaded and appealed to the party--doing everything humanly possible to vindicate himself and be reinstated. One of the most painful experiences of my life was watching a destroyed man try to save himself - especially when I knew that the truth may never be known in our lifetime. My husband was crushed. He grew more and more despondent. I was afraid to leave him alone. His life had been taken from him. Even his mother said, "It would have been better if they had killed you, like in the old country." Devastated, he agreed. However, he was alive and the only thing to do was fight to clear himself of the most despicable charge that can be leveled at a political activist: that of a police spy. The FBI would contact us with offers of money if Bill would serve as an informer: "After all, the party has thrown you out, why should you persist in your loyalty?" The IRS made a similar offer. When Bill refused, we were harassed with fraudulent income tax charges at a time when our total family income was $3,400. Because no one would give Bill permanent employment, I was the only provider. In 1972, my husband died, ending his misery. In 1975 I received a phone call from Frank Donner, an attorney and a family friend. A document that had surfaced under the Freedom of Information Act came into his hands proving the FBI had framed Bill. Frank told me that in 1973 the Attorney General had been required to turn over documents describing the FBI's COINTELPRO activities. Buried in the documents was a report dated January 6, 1965: Communist Party USA - Counter-Intelligence Program - Disruption of Hate Groups. The second paragraph begins with a deleted name and then goes on to say, "The most active and effective functionary of the New York District, Communist Party USA and leading national officer of the party, through our counter-intelligence efforts has been expelled from the party...." *** The report discussed the effects of the FBI operation, saying it has discouraged many dedicated Communists from activities and discredited the party in the eyes of the Soviets. In the course of processing these documents, an FBI clerk apparently eliminated Bill's name at the beginning of the report and neglected to do so when it recurred near the end. The truth had finally surfaced.... But what could I do with this new information? I was put in touch with the ACLU. With their help I was able to fight back. It was the beginning of 14 years of litigation.... At every turn our efforts to gain information were met with a cloak of darkness under the guise of "national security." Eventually we gained access to 30,000 pages of documents concerning our family. Verbatim conversations of phone calls, years of surveillance, copies of private medical records, bank records, pictures and more.... Was it really a national security issue that Bill thought Willie Mays was a better center fielder than Mickey Mantle? In addition to the 30,000 pages that I have received, I am told there are over 50,000 more in existence. Although much is blacked out in the files, several things are clear -- J. Edgar Hoover personally approved the operation against my husband. They had used my husband as the test to see if they could duplicate handwriting well enough to frame a high ranking adversary and then attempt to turn him into an informant once he had been ostracized. This is called a "Snitch Jacket Operation." J. Edgar Hoover wrote compliments for a job well done to the agents responsible for this COINTELPRO operation. In the fall of 1989, as we were preparing to go before the Supreme Court, the Justice Department offered to settle this case. I accepted their offer of $170,000. Fourteen years is too long a fight. It was time to let my husband's memory rest. He had been vindicated. The FBI admitted no wrong. To this day they refuse to acknowledge what their own files so clearly state: That they framed my husband and disrupted our lives, simply because we exercised our lawful right to engage in political activity and association. I must say it would not have been possible for me to carry on this fight without the dedication and unfailing support of the American Civil Liberties Union and the volunteer work by a number of generous lawyers and law firms. My story is only one of many. If it were not for a clerical error, the truth may never have been told. We who are here today have a responsibility to keep others from suffering my husband's fate. ______________________________ Lillie Albertson is employed by the University of Massachusetts. __________________________________________________ IV: The Domestic Legacy of the Cold War Comments on the Cold War and the Human Mind Milton Schwebel McCarthyism was the Cold War at its worst.... These years set a pattern of intimidation and thought control that has had enduring effects. McCarthyism was a magnified form of what had been the rather typical political climate in America from about 1870. Yet it did come as a shock; after all, our country had just fought a costly war for freedom, participated in the creation of a United Nations and witnessed people world-wide struggling to liberate themselves from the yolk of colonialism. One way or the other, the Cold War intruded upon the consciousness of all people. *** Einstein defined academic freedom as the right to search for the truth and publish and teach what one holds to be true. A 1956 study of the "academic mind" reveals how eroded this right was. Lengthy personal interviews with 2,451 randomly selected college social science professors yielded the following results: 61 percent reported that an F.B.I. agent talked with them one or more times in the previous year; 40 percent worried [that] students might give a warped version of what was said in class which would lead to false ideas about the teacher's political beliefs; 25 percent said they went out of their way to refrain from expressing certain opinions or participating in certain activities. How strangely totalitarian this sounds. The obvious effect of intimidation is the conscious avoidance of controversy. The less obvious result is the gradual elimination of controversial topics from one's lectures. This response to a sustained assault on academic freedom is so very damaging because even after the impetus for it subsides, the unconscious behavior persists. Today, long after McCarthyism, an organization known as Accuracy in Academia claims that it knows the truth better than teachers. Its goal is to use students to monitor classroom teaching for the purpose of detecting "error." Ordinarily such intimidation falls most heavily on non-tenured faculty, on those who teach the larger proportion of undergraduate students. One important Cold War development has been the academic-government-industry linkage. Today the research of many professors at leading universities is supported by federal funds. A very substantial amount supports studies and consultation for the military. The result of such Department of Defense predominance goes deeper than the funding. When, in 1987, the biology department at MIT voted to reject Pentagon funds, the MIT administration compelled the faculty to reverse their decision by threatening to deny them Institute support. An end result is noted by an engineering professor: "It is hardly surprising that military research in the university leads to military-centered undergraduate curricula." *** Which priorities the nation chooses will depend upon the public's knowledge about the actual policies of its government. But the public still suffers from what has probably been the greatest cost of the Cold War -- reduced access to reliable information. The assault on the news and cultural media during the McCarthy period instituted the kind of safe conformity that denies citizens the diversity of opinion and dissent from government positions that is vital to rational decision making in a democracy. This process leads to two fateful results: (1) the public catches on too late to spare lives and resources. and (2) the public feels helpless and apathetic and does not even bother to vote. The Cold War influenced our psyche in other subtle ways. It compelled us to live with the knowledge that all life could be extinguished through error or human folly. During times of crisis, as in the early 1960s and 1980s, many children and teenagers lived with fear. It does not take a great leap of logic to connect such awareness with a tendency to live fast and engage in so-called adult activity -- sex, alcohol and drugs. The atomic/nuclear age is coterminous with the Cold War. The external threat was used to frighten the population, rationalize bloated defense budgets and, all in all, turn the nation's attention away from policies that have as their goal something so simple and ordinary as human happiness. ______________________________ Milton Schwebel is Senior Research Scholar with Harvard Medical School's Center for Psychological Studies in the Nuclear Age and Professor Emeritus at Rutgers University. He is the author of several books and articles, and is a member of the editorial board of seven journals. __________________________________________________ IV: The Domestic Legacy of the Cold War The Cold War's Impact on the African American Community Gerald Horne The Cold War and its close companion, the Red Scare, had a contradictory impact on the struggle for civil rights. We had an expansion of civil rights in the 1950s at a time when civil liberties were being restricted. Washington found it difficult to win hearts and minds in the world and point to Moscow as a violator of civil liberties when Blacks in this country were being treated as second class citizens. This helped create a dynamic which led to an expansion of civil rights. *** The civil rights movement, in turn, helped to undermine the domestic basis of the Cold War. After the Montgomery bus boycott in 1955 some of the first High Court decisions emerged that retreated from the toxic impact of McCarthyism. So the Cold War did create conditions allowing civil rights concessions to emerge, but the price paid - breaking with the Black left - was so high one has to question whether it was worth it *** For example, we know that the affirmative action Executive Order issued by FDR came in the context of the build-up to WWII and the threat by A. Phillip Randolph to have a march in Washington. On the other hand, we recognize that part of the Cold War involved a need to oust Blacks on the left from preeminent positions in the civil rights movements; so we saw the blacklisting of Paul Robeson and the ouster of W.E.B. DuBois from the NAACP in 1948. This tended to weaken the struggle for civil rights and weakened efforts by Blacks on the left to focus on issues of redistribution of wealth. *** Certainly it set the stage for narrow-nationalism and centrist attitudes in the Black community that made it difficult to struggle against the Cold War and weakened allies of the Black community -- the labor and peace movements in particular. The domestic attack on dissent that accompanied the Cold War tended to strengthen the right wing which helped to tilt the political balance toward militarism and plunging the U.S. into militarist solutions to sensitive diplomatic and political problems. Part of the basis for the attack on domestic dissent is the notion that dissenters were basically the fifth column from Moscow and that any social upheaval was an expression of the "hand of Moscow." Right-wing forces used anti-communist hysteria to destabilize anti-racist reform itself and particularly to destabilize any critical approach to U.S. foreign policy. This reached its apotheosis during the 1988 presidential campaign when even the idea of being a 'liberal" was considered outrageous. Well, we see that that particular thesis has been weakened because Moscow has retreated; yet we still see social upheaval taking place in the world. One would wonder when people in the State Department are going to recognize that the premise and predicate of many of their policies has been eradicated. *** Finally, with regard to this new world order that is allegedly emerging, it seems that part of this new order may involve the erosion of this 500-year trend of global white supremacy which also has significant effects for the Black community, the civil rights movement and this country. ______________________________ Gerald Horne is the Chairman of the Department of Black Studies at the University of California, Santa Barbara. He is the author of Black and Red: W.E.B. DuBois & the Afro-American Response to the Cold War, 1944-1963. __________________________________________________ V: Unlocking the Doors to Government Information Secrecy and the Accurate Recording of History Page Putnam Miller As an historian and as an advocate for the historical profession, I am going to speak from the perspective of three basic presuppositions. First, I believe that an understanding of the history of American foreign relations should be a clear priority for the present and for future policy makers, as well as for scholars and citizens. The bedrock of foreign policy information and for the conduct of foreign policy should rest on an accurate record of what has gone on before. Second, there are legitimate national security needs that must receive considerable consideration. However, we are concerned that this consideration and the claim for national security has been an enormous argument that has become the grounds for extreme over-classification. We believe the extent to which scholars and citizens are denied access to information and the duration of denials-how long these records continue to be withheld -- should be kept to a minimum. A third point: our ability to understand post World War II history is being seriously hampered by over-restrictive access to historical documents. We have a system that encourages classification to the extent that there are now probably over a trillion classified documents. The method for declassifying these records is basically a page by page review, and the amount of money being spent on declassification is really very small. The National Archives is basically given this responsibility and they have a staff of only a handful working full-time on declassification. *** I'm speaking here of systematic declassification of older records. This is as opposed to the Freedom of Information Act, which of course historians use and have to rely on because the basic systematic declassification of older records is occurring at such a slow pace. With these three points in mind, historians have been extremely frustrated over the last decade. We have passed resolutions, we have written letters to members of Congress, we have talked with legislative aides, and very little has happened. *** Let me review for you briefly how historians gain access to information and have done research, particularly in the field of diplomatic history. Before the 1930's, most history was written by scholarly gentlemen and they simply went to the State Department with their credentials and were allowed to see necessary documents. In the mid-30's the National Archives was established and most State Department records were transferred there.... Documents were declassified in a fairly orderly manner. However, we did not have a policy for declassification until 1972 when President Nixon issued Executive Order 11652. Based on that order, records were to be declassified after 30 years, given certain exceptions. Then we had a Carter order soon after that, and then in 1982 there was the Reagan Executive Order 12356, which eliminated the time period. The message of the Reagan order was basically that when in doubt, records should continue to be classified.... The problem of getting access to documents has become increasingly difficult. *** Now let me turn to a glimmer of hope, which involves the Foreign Relations Series of the State Department, a collection of documents that gives us an idea of the basic development of our foreign relations. There was legislation introduced this past summer that dealt with this Series.... It included a section that called for all State Department records over thirty years old, with a few exceptions for extremely sensitive information, to be declassified.... This legislation gave us a vehicle to say to the public . . . our concerns about declassification. We are feeling good about this bill because the ranking members of both the majority and minority sides of the Foreign Relations Committee in the Senate have supported this legislation. They feel the public does have a right to know and that the State Department has been far too secretive and restrictive in their access to records. * Editor's Note: The proposed legislation is now part of the Foreign Relations Authorization Act, FY 1992 and 1993, signed into law by President Bush on October 28, 1991. The law requires that the series be "thorough, accurate and reliable," and reestablishes the thirty-year rule for declassification. ______________________________ Page Putnam Miller is Director of the National Coordinating Committee for the Promotion of History. She is the recipient of a Distinguished Service Award from the Society of American Archivists for her work in restoring the independence of the National Archives. __________________________________________________ V: Unlocking the Doors to Government Information An Insider's Story Roger Pilon What I am here to do basically is tell you a story of my own experience in being the subject of an espionage investigation while I was serving in the Reagan Justice Department. Let me begin with probably the place to begin, namely, I got a call from the Security Officer at the Justice Department . . . early in January 1988, telling me that two men from the FBI wanted to speak with me . . . Well, since my wife had gotten a similar call the day before in connection with a background investigation that was being done on her in connection with her appointment to be Assistant Secretary of the Interior for International Affairs, bells went off.... My suspicions were confirmed shortly thereafter. The background investigation on Juliana had been proceeding for probably five months. I sat down with the two agents. We discussed what I had done during my service at the State Department: the officials I had met, whether anybody asked to see classified documents, and so forth. Then one put a document down. "Did you ever see this?" I looked at a classified report to Congress on the activities-communist influence on activities -- of the ANC, I believe. I looked at it and said, "I don't know. I saw scores of these every day. It doesn't ring any bell." He responded: "You gave that document to your wife, and your wife gave it to officials of the South African government. You want to tell us about it?" And I said, 'What makes you think that?" 'We're not going to tell you." That line is very important, because that was the line that was repeated from there on out. It was a positively Kafkaesque nightmare in which the allegation is made, but you're never told what the basis of the allegation is. My wife had gone through the same experience with her interview, and she too was flabbergasted and she too was told nothing about the basis of it.... We headed over to a lawyer and began to lay out the situation. The thing the agents wanted most was to get us into the polygraph situation.... I was put on administrative leave, where I remained for nine months ... with orders to report my comings and goings from home. I was essentially under house arrest. For months this went on. We couldn't get any information.... We started trying to piece together what this case was all about, simply from the interviews that had taken place. This was in January. In April, Juliana was denied the appointment. The White House withdrew it simply because they wouldn't give her the security clearance. In June the proposition was put to me by the department: either resign or we'll terminate you. I told my lawyer who was Terry O'Donnell, now the Defense Department's general counsel, a magnificent lawyer ... Terry put a proposition to the Justice Department. He had a security clearance because he was Ollie North's number two lawyer.... He said, "Look, I've got a security clearance. Let me see what you've got. I will then advise my client, telling him nothing about what I've seen, whether to press on or to give up at this point and then I will resign from the case, because I can no longer represent them in good faith." After a month and a half the Justice Department accepted. The case was, as we had expected, tangential, conclusory, drawing straight lines from A to B to C when there were a thousand other hypotheses that could be drawn. By narrowing things down we thought there was only one point of contact. Juliana had a meeting a year earlier when she was with the Heritage Foundation, in New York, for ten minutes, at the South African mission, after which, interestingly, she had a meeting with the FBI. There was an agreement that there would be an exchange of documents between the mission and her organization.... There was a call that came in from a guy at the South African mission who was their press officer.... We thought, probably, that call was intercepted. After all, I had been at the State Department, had top secret code word clearance, I was then at the Justice Department with top secret clearance.... It did not surprise me that we might have covered the mission in some way or other electronically. This is not something one says in public but one knows it in this town. *** Anyway, they must have intercepted a conversation. They must have been talking about an exchange of documents; she was supposed to send him a paper she was doing on Soviet influence at the U N. and he was supposed to send her the items in their file. They put this together with the fact that this document, which was circulating on the Hill, the biggest sieve in town, must have gotten into the hands of the South Africans. And with me working at the State Department at the time, they had a connection. *** We prepared a long rebuttal about the implausibility of that thesis. In any event, Terry prepared a classified rebuttal and told us to press on. And he told us nothing about the case. It went to Ed Meese, who was deeply troubled by this case because he knew me personally and he didn't think remotely I had been involved.... Then he (Meese) got Terry's classified rebuttal and said, "Terry, you've done one heck of a job for your client. You've raised all kinds of questions none of us here have considered. I've simply ordered a de novo review of the case to try and address some of those questions...." In a short period of time, they sent me a letter and said I was to be restored with a full security clearance and they thanked me for my outstanding cooperation. That, we thought, was the end of it. A year passed. We thought the case was behind us. Then, the Office of Professional Responsibility issued its 1988 annual report in November of 1989. Not only did they put the case out in the public realm for the first time, not naming me by name, but they egregiously misstated the results of the case. *** It appeared the next day in the paper. They had said ... I resigned in the face of termination proceedings, which was just about as wrong a statement of the outcome as it could possibly be. It took eight more months to get this thing cleared. The then Deputy Attorney General issued a letter saying they had gotten a second de novo review and the OPR report was indeed wrong. We thought then, it was now July, that this was done. Lo and behold, in October, another leak broke in the case. We are now in suit, and as we speak our response to the Justice Department's answer is being filed in the district court. *** Let me draw some things together from this case. The securities network in this country is the consummate old boy network. It is as tight and as closed a network as you can ever imagine, for understandable reasons in part. . . A second point I wanted to draw is that oftentimes this national security and sources and methods objection is more often than not a screen behind which the greatest incompetence and corruption can hide. *** And the final point is that there is, and we must not underestimate this, a systematic bias among government functionaries to protect and expand their own interests. *** I urge you then to encourage the open procedures that will enable, consistent with national security, people to get at the kind of information that may have been behind the case such as ours. ______________________________ Roger Pilon is Director of the CATO Institute's Center for Constitutional Studies. He served in five senior posts in the Reagan Administration including Director of Policy for the State Department's Bureau of Human Rights and Humanitarian Affairs. __________________________________________________ V: Unlocking the Doors to Government Information The Impact of Secrecy on Federal Government Workers Turna Lewis The story that Roger [Pilon] just relayed to you is not the exception, but typically the way that investigations are conducted.... There needs to be a balance between the valid government interests of national security and ensuring that employees have certain individual and privacy rights that are not intrusively encroached upon. *** The law regarding security clearance procedures and free speech rights of employees is unsettled.... How should the government determine suitability for a security clearance? What is the proper subject of inquiry? What constitutes impermissible invasion of an employee's privacy? Government typically maintains that employees have no entitlement to a security clearance, and therefore they should not be entitled to any due process. Obviously, that's not what individual advocacy groups or unions advocate. *** Did you know that if you want to work for the Departments of Justice, State or Defense that you have to undergo a background check, and all employees are required to have at least a secret clearance. The basis for requiring a background check of all employees is Executive Order 10450, signed by President Eisenhower in 1953. The order basically provides the authority for government agencies to establish their own security clearance procedures for applicants. *** Some of the things the government looks at that we think are inappropriate are lifestyles or ideology.... Every employee who works for the federal government is required to submit to a background check. It might be Standard Form 85 or Standard Form 86, which goes into every place you've ever lived for the past ten years, positions, what membership organizations you belong to, and whether or not you've been under the care of a psychiatrist. *** Does the government really need to know the information they are asking? They also ask questions regarding illegal drug use over the past five years, yet the form does not provide any provision that employees will not be the subject of any civil or criminal action for answering this question honestly. Another problem with the SF-86 is that there is a broad grant of authority that the employee is required to sign for the release of information. *** The next issue is what happens when a security clearance is denied to an employee or to an applicant. Right now the case law is such that courts grant great deference to executive agencies.... Courts have said that no one has a right to a security clearance and therefore you're not entitled to any kind of due process. It is their argument that security clearances require an expertise which is not reasonably possible for an outside body [such as the courts] to have. The internal process is shrouded in secrecy.... It is a situation where employees may be walking the halls for months, or maybe for years, while the State Department decides what they want to do. This is because there are no procedures which require that an agency process a request or review a case within a certain period of time. Generally, when this is done, the State Department wants the employee to simply resign. *** Minimum due process should include a written explanation of reasons for the denial and a right to appeal, including a hearing, to an independent body. We also think that minimum due process for employees should include time limits on the suspension of a security clearance and a time limit on the length of the investigation. *** I want to now address the SF-312 nondisclosure agreement. The issue is sometimes over-classification of documents, and under what conditions it is appropriate for an employee or for someone who has signed a non-disclosure agreement to disclose that information. If employees do not sign, they risk losing their security clearance and their job. *** One of the concerns about the SF-312 is the definition of classified information, which is defined as being marked or unmarked. It can be oral communications. It can be unclassified information which meets the standards for classification and is in the process of classification and termination. What this does is cause the employee not to know if information is classified or not -- so the effect is to chill communication between employees. *** AFSA [American Foreign Service Association] filed a lawsuit regarding the Standard Form 312 on these grounds. As a result of the lawsuit, legislation was passed which required amending the SF-312. Congress said the form must be amended so that it includes language which specifies that in conflicts between secrecy requirements and free speech, free speech supersedes the former.... We'll have to see exactly how that's going to be implemented. ______________________________ Turna Lewis is General Counsel for the American Foreign Service Association where she handles matters related to security clearances, security investigations and the due process rights of federal employees. __________________________________________________ V: Unlocking the Doors to Government Information Exposing the Pentagon's Secret Budget Tim Weiner One of the enduring ironies of the Cold War is that our open and robust and contentious society took on a few of the sullen and secretive and closed aspects of the society it was trying to defeat.... I have been working off and on for five years off of ... the public budget of the Pentagon, which is in essence a false document because hidden in that document in many creative and inventive ways, some obvious, some not, is between 35 and 36 billion dollars a year of public funds, that works out to roughly a hundred million dollars a day. This is known inside the Pentagon and increasingly outside the Pentagon as the "black budget." In essence, the black budget is the secret treasury of the President, the Director of Central Intelligence and the Secretary of Defense. It funds each of the eleven major U.S. intelligence agencies and also funds research and development and procurement of some of the most expensive and least sensible weapons in the Pentagon's arsenal. There are two separate issues here. One is the whole notion that you can have a classified budget. The question arises from Article 1, Section 9, awes 7 of the United States Constitution: "No money shall be drawn from the Treasury but in consequence of appropriations made by law and a regular statement and account of the receipts and expenditures of all public money shall be published." Simplicity outsell The framers did not envision a secret budget. Now the Cold War changed that. *** Something transformed the black budget in the 1980s, and that was the masking of the costs of some of the most expensive weapons the Pentagon creates. My good friend Ernie Fitzgerald often says there are two stages in the life of a Pentagon program: too early to tell and too late to stop. When you add to this equation, too secret to debate, you run into some serious problems. I want to run past a few of them. We had poured close to 25 billion dollars into the B-2 Stealth Bomber before a single word of public debate was ever heard on the floor of Congress. To date we have committed 32 billion dollars to this program. We have produced two planes. They have performed three percent of the requisite flying time of their tests. It's unclear what is going to become of this program, but the best possible result from a fiscal perspective is that we will produce a wing of planes, each of which, at 70 tons of weight, will cost more than if it had been built of solid gold. They used to talk of gold-plated weapons at the Pentagon. This is a solid gold bomber, and it is a nuclear bomber which will most likely gather dust in its hanger unless a full-tilt nuclear war with the Soviet Union begins. Another much less known program is MILSTAR, which stands for the Military Strategic Tactical and Relay System. This is envisioned as a constellation of eight satellites in space and a network of ground terminals on earth at a cost of 35 to 40 billion dollars that will -- after a strategic nuclear war with the Soviet Union, after Washington is gone, after the Pentagon is reduced to smoking, radiating ruins, after the government as we know it ceases to exist will weave together what remains of our strategic nuclear forces so that we can go on fighting the Soviets, not for days or weeks, but for six months. Now, public debate on such a program, and at such a cost of 35 to 40 billion dollars if completed, is in the interest of the United States. But it can't be debated because it's too secret. *** What you have when you have a secret weapons budget is a realm in which public debate cannot intrude, the press is severely circumscribed, and the Freedom of Information Act is totally useless. We must begin to ask ourselves: "Who are we protecting this information from?" I argue in my book, Blank Check, that the costs of weaponry, not the technologies, not the designs, and in some cases not even their names, but the costs of weaponry is information that properly belongs to the citizens of a democracy. We must gain more information in this realm and increase public debate, as has been suggested by the Rockefeller Commission on the CIA, the Senate Select Committee on Intelligence in the 70s and, in fact, every executive or legislative commission that has ever examined this. If we could unmask some of the costs of weaponry we could have a more intelligent debate on what we are spending in the name of national defense and national security. *** If we continue to spend 300 billion dollars and more a year on the Pentagon's budget, and if we don't address other national security needs, we, I submit, will follow the Soviets into the abyss into which they plunged. ______________________________ Tim Weiner is the Washington correspondent for the Philadelphia Inquirer and author of Blank Check, a book about the secret intelligence budget. His series about secret government spending won the 1988 Pulitzer Prize for national reporting. __________________________________________________ VI: A Constitutional National Defense The War Powers Debate Harold Koh The War Powers debate of January 1991 demonstrated that it will be a long time before anybody seriously makes the argument that the President can enter a large-scale premeditated, potentially sustained war against an aggressor nation without the approval of Congress. In our history there are 211 occasions where the President committed troops without congressional approval ... and only five examples of large scale wars where the President received such authorization: the two World Wars, Vietnam, Korea and Iraq. In four of the five cases, except Korea, the President came to Congress. [For] the two World Wars he got a declaration; in Vietnam he got the Gulf of Tonkin, however he managed to get it; and in the current case of Iraq he got the resolution from Congress. Congress recognized that it was going to give up its prerogative to declare war unless it asserted it, and began debate even before the President came to Congress on January 10 of this year. The courts also seem to have finally recognized this, as seen through Judge Greene's decision in the Dellums case, Dellums v. Bush .... The judge adopted both the view that the President did not have the authority to commit troops without congressional approval and that this was a question that a court could decide .... The important thing to recognize was that this was a very powerful statement by a court -- a warning to the President. *** The President, Congress and the courts have now all accepted this proposition. This issue may have subsided simply because it will become more and more ridiculous to even conceive of having begun a war like this without congressional approval. Seventy-five thousand people were in D.C. protesting the war a week ago. If there had been no congressional approval, there would have been 750,000. The Wall Street Journal, days before the resolution, discovered in a massive poll that 71 percent of Americans thought congressional approval was required. We had a moment of national constitutional debate of the kind we have had only a couple times in recent memory ... and the majority answer was clear. *** That's the good news. The bad news is that the decision to go to war was made very badly. We should all be embarrassed about our national institutions and frightened for the future. The President should have come to Congress on at least three occasions. In August, September and in November, after the escalation. Or he could have called a special session. But he didn't do any of these things. That does not mean that Congress escapes blame. Congress could have demanded that he come and could have invoked the War Powers Resolution to prevent the escalation from happening, or at least to challenge it. Neither of these courses of action were taken. Instead it waited until the absolute last minute to address the question... [T]he declare war debate is really part of a much broader debate regarding our foreign policy. The problem has two alimonies: a constitutional element and a policy element. Constitutionally we have gotten ourselves into a situation where the system is out of whack. The President acts secretly and delegates power to unaccountable institutions. Congress has every incentive to avoid responsibility. And the courts have every incentive to avoid passing judgment. As a result, we have a system where the President acts, Congress does nothing, and then the courts refuse to rule on the legality of his actions. I think that is both unconstitutional and bad policy because the President is a victim of the system as much as he is a villain in it. He does not have the long-term political strength that comes from having congressional support and he does not have the kind of validation that comes from getting judicial approval. This problem has cropped up across the foreign affairs spectrum also, with regard to emergency economic power, military aid, covert action, intelligence oversight and treaty affairs. I saw it when I worked at the Justice Department from 1983-85 and again in the Iran-Contra affair. People viewed the Iran-Contra affair as an aberration, not a systemic problem, and so Congress did nothing. *** What about press access? How can we judge what's happening if our press can not find out what's going on? As an Asian-American. discrimination at home against Arab-Americans is something that deeply concerns me, and which I see happening again. I think if we are serious about a new international legal order, then we have to urge our governmental officials to actually follow the predicate of an international legal order. I think that's the real peace dividend. ______________________________ Harold Koh is a professor at Yale Law School specializing in the U.S. Constitution and Foreign Affairs. Koh served with the Office of Legal Counsel of the Department of Justice in the Reagan Administration. __________________________________________________ VI: A Constitutional National Defense Discrimination Against Women and Homosexuals in the Military Michelle Benecke I want to go over the legal framework which permits formalized discrimination against women, gay men and lesbians [in] service, and ... to expose fallacies on which the military's policies are based. *** The military is granted exceptions to laws which mandate access to public forums, i.e. you cannot picket or leaflet on military bases. The military is granted an exception to general rules which allow non-harmful religious practices, such as the wearing of yarmulkes or other religious symbols while in uniform.... The military has also been granted exceptions to strict judicial scrutiny of discrimination on the basis of race during wartime and [to continuing] womens' exclusion from the draft. . . Additionally, every court challenge brought by lesbians and gays against the military policy on constitutional grounds has failed. *** I think it is both timely and important to mention the combat exclusion policy, given that over 11 percent of our forces in the Gulf are women.... Even though we now recognize that women are there, Americans fail to understand what women are being asked to do. The term combat exclusion would lead one to believe that women are not involved in combat. But the Patriot missile crews who have women crew members and the Marine woman who may have been taken POW yesterday morning would vehemently protest that implication. In fact, the definition of combat has been a semantic game in the Defense Department for at least a decade, with the definition linked more to the availability of manpower and the social/political climate of the time than to the actual capabilities of women -- which is offered as the rationale for the policy.... When men have been available, definitions of combat have broadened to encompass more jobs and to exclude women from them; when men have not been available the definition has narrowed. When I was in the military women were admitted because there was difficulty in recruiting and retaining men in the post-Vietnam era.... So women were recruited to fill the missile specialties within my branch. At the same time women started filling these specialties, those jobs were re-coded from combat to noncombat without changing the mission or the purpose of the units to which women were assigned. This is not just my branch; this has been a typical pattern. At the Third Armored Cavalry regiment in Fort Bliss, Texas, which is now in the front lines in the Gulf, women were assigned to fill support and supply positions because men were not available. When the Pentagon found out, it ordered the removal of women from the units. But local commanders, recognizing that the unit could not function without the support, got around the requirement by assigning the women on paper to a non-combat unit but leaving the women in the combat positions. *** Also, it's an established military doctrine to first take out command control communications, supply lines, and nuclear and biological and chemical assets. This is where the combat exclusion policy assigns our women, setting them up to be casualties in any initial strike.... The combat exclusion policy serves to preserve prestigious fields in the military which are required for advancement for men, at the same time denying the truth of what women do in the service. The rationale behind banning gays and lesbians is that their inclusion would hurt the discipline, morale and good order of the services.... The case of Perry Watkins should be cited here. Watkins was inducted during the Vietnam era despite the fact [that] he notified the military he was gay and continued to notify them through the entire 16 years of his service. Watkins commander said in court he was one of the most trusted and respected men in the unit and that he did not wish to see him discharged. This is not atypical. Gays and lesbians have consistently furnished outstanding performance records and testimony that their presence did not hurt discipline or morale. In its implementation, the policy [against homosexuals] has been used disproportionately, against women.... The 1980s was characterized by a wave of investigations against women ... by picking up those who were suspected or rumored to be gay and threatening them with prison if they did not name other lesbians. *** The impact of such policies has been to force women to act in gender roles that are traditionally sanctioned.... Women have to try to find a fine line between accepted femininity to ward off suspicions they might be gay, but they can't be so pretty that they are not taken seriously. This places a tremendous amount of stress on women in the system to conform. ______________________________ Michelle Benecke served in the U.S. army from 1983-1989 as Battery Commander and Air Defense System Officer. She is the author of "Women in Nontraditional Fields," and is presently a student at Harvard Law School. __________________________________________________ VI: A Constitutional National Defense The Government's Secret Wars Prexy Nesbitt In mid-1949, the covert action arm of the CIA had about 300 employees in seven overseas field stations. Three years later there were 2,800 employees in 47 field stations. In the same period their budget grew from 4.7 million to 82 million dollars. *** By 1953 the CIA had major covert action programs underway in some 48 different countries, consisting of propaganda, paramilitary and political action operations, and other tactics.... And with post-World War II, covert action took off to a new level, with the "Third World" being the special target of U.S. covert activities. *** What do we mean by covert activities? In 1968 Richard Bissell, former deputy director of clandestine services for the CIA, listed them as follows: (1) political advice and counsel; (2) subsidies to an individual; (3) financial support and technical assistance to political parties; (4) the support of private organizations: labor unions, business firms, cooperatives, churches; (5) covert propaganda; (6) private training of individuals and exchange of people; (7) private economic operations; (8) paramilitary or political action operations designed to overthrow or to support a regime; (9) media operations, including disinformation activities. I would add to this initial list the following -- bank and banking operations -- and would particularly cite the role of the CIA in working with the First National Bank of Maryland from 1981 to 1985 to help in the payment of some 23 million dollars in covert weapons purchases for Chad or Angola in Africa. In particular let us look at the record in this very brief time of the Bush Administration. In 17 months the ex-CIA director Bush has used military force to invade and overthrow the government of Panama, without congressional approval. He has also helped to sustain and to further a pattern of sending in repressive military force in the name of fighting drugs. We can also look at the increase in arms shipments and advisors.... There was the financing, equipping and training the special anti-Khaddafi army that was based in Chad and has operated until this last year. There was the special air-sea operation in August of 1990 into Monrovia, Liberia. Very few people know that we sent 255 US. Marines that helped attack helicopters and jets to evacuate allegedly some 61 Americans.... It was linked to another operation aimed at protecting classified U.S. materials, communication and intelligence facilities all over Liberia. *** The current reality of CIA and covert actions is an annual budget of somewhere around 10-12 billion dollars. But when you look at the aggregate budget of CIA, counterintelligence in the FBI, the National Security Agency and the various military intelligence agencies, it is an annual budget somewhere between 30 and 35 billion dollars a year. No one knows where those figures end up. One of the clear patterns is a tremendous growth in the amount and scale of covert actions through the years. In 1980 there were about 14,000 CIA employees. By 1986 it was closer to 23,000. In 1976 there were some 300 identified CIA operations. By 1981 there were well over 1,000 operations. In 1978 there were 12-14 major operations... but 44 by 1988. Throughout this same period we see a growing collaboration between the CIA and [the] Army.... It becomes even harder to get information about the military. Many of their operations fall into an arena that has limited oversight by either the intelligence committees or the military committees. *** Operating within US. foreign policy is a fundamental and trans-partisan assumption that the U.S. government and/or its operatives retain the right and obligation to intervene overtly or covertly in the affairs of Third World nations anew time it deems necessary. I believe this notion is derived from the twin roots in U.S. history of racism and of imperialism. It has resulted in and [still] results in incalculable terror, death and ruin being visited upon the lives of the peoples of Africa, Asia, Latin America, the Caribbean and the Pacific. Whether it's our marines or whether it's our dollars to hire someone else or someone else's destabilization arsenals, the end effect is a large-scale and sustained war for the peoples of the Third World.... I think that makes the U.S., either directly or indirectly, the ultimate killer nation.... I predict that after the Gulf we are going to have many other scenarios like the one we see unfolding now. ______________________________ Prexy Nesbitt is the senior consultant in the U.S. for the People's Republic of Mozambique. Previously he was Associate Director of the American Committee on Africa. __________________________________________________ VI: A Constitutional National Defense The Selective Service System Reverend Bill Yolton I want to talk about three levels in which the selective service system serves non-military purposes. The system is at this moment a very interesting paralegal entity. It is not really a set of laws, and it has the lowest standard of proof of any other system of law in the U.S., except for the condition of prisoners. All you need in the selective service system is any basis in fact and there's no court review. *** The system is conceived, therefore, as an emergency system in which most of the constitutional guarantees are, in a sense, set aside in order to allow the nation to respond in great emergency. But actually it does other things. It serves civil religion. It helps [maintain] control in this society. Jerry Schanck's study of the local board in the First World War shows how that board, with the sheriff as the chairman, managed to keep all the Blacks in that community successfully down on the plantation. The informal control system now had federal law on its side. Of course there is always the fine of five years and/or $250,000 for young men who fail to register. These young men are encouraged by "it's quick, it's easy, it's the law, break-dance down to your nearest local post office and sign up for the draft." Except in this society nobody can breakdance down to the nearest post office and sign up to vote. It's much more important in this society that people sign up to kill people than to sign up to exercise their democratic responsibilities. And deviation in the system is subject to the whims of local boards, with few controls.... Since registration was begun, there have been no oversight hearings by Armed Services [congressional committees]. The only place we get our foot in the door is to attack the budget through a House committee that reviews the budget annually. Otherwise, this system has had a new set of regulations put in place which even the memoranda from the Pentagon indicated in the 1970's would require major revisions of the statute in order for these to be implemented. It's very interesting to see how the draft will work and what methods will be able to be effective in challenging the authority system when it finally begins to act.... With the classifying authority having been removed by statute from the local board ... power has now been given over to the Pentagon to make those decisions. So the system is ready to go at any moment. Once the declaration of war comes, the President can invoke the draft again and it can operate immediately. The next day the computer will issue the mailgrams to the low lottery numbers from the lottery the night before and people will go quickly, not to pass go, but straight to the induction center. That's a ten day time sequence we're talking about. *** What we have is a system which has a very low standard of democratic rights present within it. At a second level it has always served red-baiting -- it's part of the anti-communism spirit of the society. Turnage says... the draft is as much a weapon in our arsenals as any missile or bomber. It's designed to help people share in certain values in society. Understandably, the recruitment of local board members tends to be out of ex-veterans and people who are "patriotically" willing to see this thing run. *** The liberties of young men who are conscientious objectors are very limited.... The Solomon Amendments basically say that that person is excluded from opportunities for higher education or job training or employment in the executive branch of the government. That's most jobs at the federal level. So these persons are essentially shunted aside from exercising their freedom about their own consciences.... [This is] one of those terrible dilemmas that young people are in at this time who want to look at this issue seriously. *** So this is the system that is currently in operation and to which our young people will be subject when it comes into operation at that very quick time schedule. We fear that because the changes have not taken place in the system before it goes into action, under the wartime constraints it will be very hard to remedy the problems with it. ______________________________ The Reverend William Yolton is Executive Director of the National Interreligious Service Board for Conscientious Objectors. his critique, A Short History of Selective Service and Why it Should be Ended is in publication. __________________________________________________ VII: Free Trade in Ideas - An Idea Whose Time Has Come An Unexplained 44 Days of Detention Choichiro Yatani [When I was detained], aliens from all over the world wondered why I was there. I could not answer why. Simply, the government never explained why they were arresting and detaining me for 44 days. But when I was released from detention, according to the New York Times, one U.S. official said, "This is a troublemaker from Japan. There's no more benefit to keep him in detention, so let's release him." Let me explain what happened to me. In 1986 I went to Amsterdam because my research paper on antinuclear activism was invited by the organizer of the international [academic] conference.... I attended and talked about [the] nuclear issue. *** When I returned to New York City the government officials stopped me and took me to the detention. I asked them, 'Why are you doing this to me?" [They said], "We don't know yet...." So I thought they are kidding me.... Three weeks I was there without knowing why. Then they explained that I was involved in a big crime and that I was a national security risk. What concerned them most was something political I had done a long time ago. And when I went to court, the court said I had no judiciary power because the State Department revoked my visa two weeks before. Therefore, without a visa I had to leave.... Why, I asked? No explanation was necessary [in their view]. *** Fortunately, the Lawyers' Committee, the New York Times, the Washington Post and other publicity described it as Kafkaesque. Nobody knew why this happened. I thought this couldn't be happening particularly in the country of U.S.A., because everybody knows this is the most democratic, most open, free society in the world. I told everybody that I was an anti-war activist during the 1960's and 70's. I was arrested and convicted, but that happened to everybody.... But what was the crime, according to the U.S., I don't know because they continue to refuse to disclose the files. Although everything is speculative, I guess my anti-war activism in Japan and the anti-nuclear research I have done contributed to the government charges that I was a "national security risk." The last 25 years we have been totally blind from the reality in the world because by the Cold War mentality many American people are totally branded by the government. *** Mr. Bush himself declared the Cold War over. But I cannot accept his declaration unless he initiates the repeal of the McCarran-Walter Act and my name is removed from State Department "Lookout Lists of Undesirable Aliens." In January I filed a suit to a federal court against the State and Justice Departments [demanding] that they remove my name from their lists because of the 1990 Immigration Act. This is the first legal challenge of its type. According to a recently published book by [the] Lawyers' Committee for Human Rights, over 300,000 foreigners are listed in that government blacklist. It is not merely inconvenience and denial of travel rights which are of concern, but rather the U.S. government's denial of American principles and benefits to its citizens. The government does not like to show the reality. So what can we do to end the Cold War?... Three things: (1) repeal the McCarran-Walter Act;... (2) remove all names from government alien lists, and... (3) we have to establish a new world order, not by the government, but by the people. I hope my legal challenge will benefit others charged by the government and will contribute to ending the Cold War at home so that we, Americans as well as many in other countries, can make the international community a better and more secure world. ______________________________ Choichiro Yatani is a lecturer at SUNY/Stonybrook and at St. Joseph's College. His lawsuit is the first legal challenge to government alien blacklisting since the Immigration Act was enacted in November 1990. __________________________________________________ VII: Free Trade in Ideas - An Idea Whose Time Has Come Restrictions on Travel to Vietnam John Terzano In 1981, I was a member of the first group of combat veterans to return to Vietnam since the end of the war. I have subsequently made several trips to Vietnam and Cambodia. I understand the powerful effect the experience of traveling to Vietnam can have, not only on the American veterans who have returned, but also on the Vietnamese people themselves.... This free exchange of ideas has enabled veterans to lead the way to assist the Vietnamese people, to rebuild their country and provide them with humanitarian assistance. While the current law does not prohibit Americans from traveling individually to Vietnam, the ban on organized trips effectively bars Americans from visiting the countries of Indochina, and these restrictions complicate the process of obtaining visas and arranging in country travel and accommodations. *** There are two categories of individuals that most often express the desire to return to Vietnam: Vietnamese-Americans and American veterans. Both groups have valid reasons and needs for returning, however, neither group has a professional medium to arrange or enable them to carry out their intentions because organized travel has been banned. Perhaps the most poignant information an individual learns during a trip to Vietnam is that, for the Vietnamese, the war is over.... And yet, America continues to treat Vietnam as the enemy.... The effects of the embargo and the current isolation imposed on Vietnam have severely hindered Vietnam's ability to rebuild their country, and as a result Vietnam is often unable to provide even the most basic of needs to its citizens. This is a sharp contrast to the way that America has treated other former enemies. Following World War II, the United States helped Japan become one of the most powerful industrial nations in the world and rebuilt Germany with the Marshall Plan.... Even after Korea, the American veteran community supported reconciliation efforts. In President Bush's inaugural address he stated, "the statute of limitations on the Vietnam War has been reached," and that "no great nation can afford to be sundered by a memory." The President's rhetoric, however, does not match his policies. It is ironic that President Bush has consistently defended his China policy by claiming that he does not "wish to isolate China by no contact and set back the clock...." It is difficult for me to reconcile the difference in the policies this Administration applies to China and Vietnam. It is through the free exchange of information and ideas that tremendous changes in the world can take place. Although it may sound somewhat trite, I fully believe that rock-and-roll and blue jeans did more to bring the Berlin Wall down than the trillion dollars spent on a defense budget. Unofficial dialogue between nations has a special relevance in a democracy where public opinion has a great effect on policy making. Indeed, Justice William Douglas recognized this some 34 years ago when he wrote in Kent v. Dulles: "The right to travel is part of the liberty of which a citizen cannot be deprived without due process of law under the Fifth Amendment. Freedom of movement across frontiers in either direction was a part of our heritage.... It may be as dose to the heart of the individual as a choice of what he eats or wears or reads. Freedom of movement is basic in our scheme of values." Justice Douglas went on to quote Zachariah Chaffey, a writer on the First Amendment who stated, "Travel abroad enables American citizens to understand that people like themselves live abroad and helps them to be well informed on public issues.... In many different ways direct contact with other countries contributes to sounder decisions at home " This view of travel was once not only an ideal, it was once our law. It is time that we as a nation returned to these core values and principles and allow once again the free and open exchange of ideas and the right of U.S. citizens to travel abroad. _____________________________ John Terzano is president of the Vietnam Veterans of America Foundation. He was a member of the first delegation of combat veterans to return to Vietnam since the end of that war. __________________________________________________ VII: Free Trade in Ideas - An Idea Whose Time Has Come Legislating the Free Flow of Information Bari Schwartz I want to give you an overview of the law in the area of [restrictions on the right to travel and exchange information] and on the more cheerful side tell you what some members of Congress are trying to do about this. *** Congressman Berman has specialized in the travel issues. I think many of you are familiar with the fact that Congressman Barney Frank has worked on the McCarran-Walter issues of entry of people into the United States. Senator Moynihan is very much involved and concerned in this area. There are a number of members that are involved in this effort. I want to bring you greetings from Congressman Berman.... He definitely will be introducing a bill in the next month or so to remove the authority for travel restrictions under the ambit of economic embargoes.... I have to tell you that the prospects for this legislation standing alone are dubious. *** Even under the current law there is no reason why the regulations have to go as far as they do. It's the Office of Foreign Assets Control in the Treasury Department that administers and implements any sort of economic embargoes that the President declares against particular countries.... But, we very strongly suspect it's the State Department that conveys to the Treasury Department what the foreign policy objectives are that we're trying to pursue. We will continue our on-going discussions with both the State Department and Treasury to try to get them to ease up as far as they will in terms of the regulations. Coming back to the legislation itself, there is always the possibility of trying to break off pieces of Congressman Berman's larger travel bill for inclusion in other vehicles that might be coming through the pipeline in Congress. That is exactly what happened on the issue of the import and export of informational materials. Several years ago Congressman Berman's bill included, in addition to the travel issue, a section that deleted from the President's economic embargo authority the ability to impose restrictions on the import and export of informational materials.... We did succeed in the 1988 trade bill in getting that provision, with Administration support. Since then, we have had continuing problems, [the Treasury Department has] taken the most restrictive reading of what "informational materials" means in the implementation of the Berman Amendment. They insist on excluding telecommunications from the definition of informational materials. CNN had to fight the Treasury Department for the ability to broadcast in Vietnam under the embargo.... That was finally resolved favorably. *** In the area of defining informational materials, the [Treasury Department's] Office of Foreign Assets Control takes the position that paintings are expressive materials.... Mr. [Ramon] Cernuda is a Cuban-American and he likes to collect Cuban paintings. Well, it was felt that this was currency going to Cuban nationals. *** U.S. Marshals went into his apartment and seized 200 paintings. There was litigation over this and it was determined in the court in Miami, Florida, that the Berman Amendment regarding informational materials does cover paintings. OFAC refuses to consider this a case of nation-wide impact, so there's another lawsuit pending in New York.* *** On the travel issue generally, I think many of you may know that it's the International Emergency Economic Powers Act (IEEPA) and the Trading with the Enemy Act that gives the President the basic authority to impose economic embargoes, and it's pursuant to that authority that the President, with regard to a number of countries, has imposed currency rest Actions that in the case of Cuba, Libya, Iraq and Kuwait, pretty flat out make it impossible for Americans to travel there. On the other hand, in the Vietnam, Cambodia, and North Korean cases, the restrictions are less onerous. Nonetheless they still remain. *** Congressman Berman's bill, again, would delete the authority under these economic embargo statutes to impose currency restrictions on travel. And, in trying to advance this bill, the kinds of arguments we make are that we have found it is absolutely essential to separate that for which we're trying to argue from the merits or demerits, foreign policy-wise, of any particular economic embargoes. *** The fact of the matter is these restrictions impinge on the civil liberties of Americans and their right to travel. So it should be [prohibited] irrespective of the merits of any particular embargo. *Editor's note: This lawsuit was settled, and the Treasury Department agreed to amend the regulations to permit the importation of Cuban paintings. However, artwork from other embargoed countries, such as Vietnam, still may not be imported without a Treasury Department license. ______________________________ Bari Schwartz is the Legislative Director for Congressman Howard Berman of California and has worked on his "Free Trade in Ideas" legislation. __________________________________________________ VIII: Government Surveillance and Erosion of the Fourth Amendment Erosion of the Fourth Amendment Mark Lynch Effectively, the Fourth Amendment is the protection we have against government searches and seizures of our houses, persons, papers and places which are deserving of privacy. Yet day in and day out the Fourth Amendment, for a great number of our citizens, simply has no meaning. *** There is no place this is clearer than in the criminal courts which have steadily enlarged existing exceptions. One example is that of protective sweeps. It used to be acknowledged that when you arrested someone you could make a search of the things in the immediate vicinity of the arrestee. That's been recently expanded to justify a search of an entire dwelling place.... Also, clerks, without any formal training in the law, can issue warrants. *** Courts have also weakened the principle of probable cause so that it has been transformed from a fixed quantum of evidence to a highly flexible standard that can be manipulated on a case-to-case basis. You now hear phrases such as "there was substantial basis to believe that evidence could be uncovered" or "there was a fair probability that evidence could be uncovered." This is obviously a retreat from the principle that held sway under the old understanding. Another technique has been to expand the number of so-called lesser Fourth Amendment intrusions that do not require warrants and can be based solely on reasonable suspicion rather than probable cause. The Court has also manipulated with considerable dexterity the concept of reasonable expectation of privacy.... Perhaps the best example of this has been the cases involving aerial surveillance of open fields.... If an airplane can see your action, flying overhead, then the Court reasons, you have exposed the activity to the public, and you have no reasonable expectation of privacy. *** Aerial surveillances not only of fields but of areas close to one's house have been denied the status of having a reasonable expectation of privacy. Even trash, carefully wrapped and thrown away in the wrapper, has been held to be something in which you don't have a reasonable expectation of privacy. *** There has also been an expansion of the notion that there are special governmental interests which justify searches.... The Court held that blood and urine tests could be required of government, or people in certain positions in the government, or people applying for those positions. More recently, the Court sustained the practice of police conducting random sobriety checkpoints.... Finally, and perhaps most importantly, in the criminal courts the effectiveness of the exclusionary rule has been drastically reduced by the application of the so-called "good-faith" defense. There was a law review article written by a professor at Georgetown named Silas Wasserstrom in 1984 which he entitled "The Incredible Shrinking Fourth Amendment." And that title is incredibly apt. The whole coverage of the Fourth Amendment has been narrowed down and then even within the area that it still covers, the protections have been watered down. I think that one of the challenges, if we're going to talk about resuscitating and reviving civil liberties in this country ... is reviving the Fourth Amendment and restoring it to its proper place. I think the only way that this can be done is through a legislative program. I'll admit the prospect of trying to revive the Fourth Amendment is a rather grim and daunting one. But ... it could indeed happen. Now, I'm going to turn in the last two minutes available to me to the question of national security searches. Should the government be able to undertake physical searches of a person's home or papers under a national security exception in situations where the target of the search is thought to be the agent of a foreign power? It appears to be the case that the Justice Department and the FBI, with some regularity, do conduct these kinds of searches.... The public policy issue is whether this lawless regime of national security physical searches should be brought under the statutory regime that now governs national security electronic surveillance? My own view is that it should not; at least until the Supreme Court clearly holds that there is a national security exception for physical searches. There has been no United States Supreme Court case saying that a [warrant less] physical search for national security purposes is permissible, and until that happens, I don't think that we should submit national security physical searches to the FISA regime; in other words, we should make the government work for its exceptions before we get Congress to correct them. ______________________________ Mark Lynch is a partner with Covington & Burling. He formerly litigated cases involving government surveillance and secrecy agreements for the National Security Project of the ACLU, and cases under the Freedom of Information Act for the Public Citizen Litigation Group. __________________________________________________ VIII: Government Surveillance and Erosion of the Fourth Amendment The FBI's "Library Awareness" Program Judith Krug This program came into public view in June of 1987 when two FBI agents went into the library at Columbia University and asked the clerk at the circulation desk to, not only give them the names of "funny-sounding foreigners," but to henceforth monitor the reading habits of funny sounding foreigners, and to inform the FBI as to what these people were reading. The clerk directed the agents to [a colleague], who said "I'm not giving you anything." In fact, she gave the FBI agents a lecture on our position vis-a-vis confidentiality, the importance of privacy, and then sent them on their way. She then called me.... She went on to explain that the agents had told her they were most concerned with individuals, from hostile foreign. countries such as the Soviet Union, reviewing materials in libraries that dealt with high technology, particularly, and then, math and science in general. Why? Because they were sure that such activities were contrary to our national security. Subsequently, we had more complete guidelines from the FBI as to the type of individual we, the American library community, should be looking for. First, suspicious-looking foreigners.... Second guideline, individuals making hard copy from fiche.... And, the third guidepost, people stealing materials from libraries. *** The library community was appalled.... Why were we upset? First of all, we believe that the right to receive information is protected by the First Amendment.... We also believe that the right to receive information is not only protected, but is your business. *** Many years ago we entered a campaign to have privacy and confidentiality of library records codified into state statute. Now, we have 44 states which do protect the privacy and confidentiality of library records, and the District of Columbia has a similar statute.... It is not only a basic policy of the association, it is an integral part of our code of professional conduct. *** We told all of this to the FBI. They told us the pro