Acting Free
by Dennis Poindexter
he could tell the difference between a person who was free, and one who wasn’t. He said, “They act free”, which is something most of us in America don’t grasp very well. Folks in Iran, Syria and Russia, could probably tell us something about it. For the many years of working for the government, I didn’t have a real understanding of what it meant. I used his comment many times in teaching my students, but it was not the same as being there. I worked in places where everything we did was a secret, in some way, and those are pretty uncomfortable . Most of them didn’t have windows, and we had to enter through a locked door. There were bars on the windows in one place, and that was really unpleasant. But, we always had the feeling that the importance of what we did outweighed the inability to be entirely free. We could accept certain rules that protected our country, and sometimes protected us. If some of the secrets got out, it would not be pleasant. This didn't keep us from acting free among ourselves. We went out, had fun, enjoyed each others' company and argued. We could be critical of our bosses or the national leadership and not have a political officer sending us to a camp somewhere. Don't confuse this with being free in the same context the defector was talking about. Places with Really Big secrets are not always free; some are more so than others. I would never say they weren't patriotic, or that they didn’t appreciate the importance of the work they do , but that is a different thing. They don't act like they are free. It is better to have an example, because this is not a simple idea. The Hook What most non-government people don’t know is the nature of the lasting relationship that exists when retirement comes. If a government employee has a security clearance like the one I had, there is not an “ex-employee” clause in any of the agreements one has to sign. These agreements last forever. This is a “till death do us part” agreement and there are many unpleasant parts to it. For one of the most irritating, the government is required to review everything I write for public consumption, including such things as a resume sent to a potential employer– just to make sure it is not classified information. I have done this 20 times over the years and it is never fun. It is impossible to write a column in a newspaper given this type o f review, but it is also difficult to write anything that disparages the work the government is doing, particularly if it is the Defense Department or the Intelligence Community. Some people just do it anyway, but that is not in my nature. Thirty years ago, I submitted my first article for approval and got back a note from the approving person that said I could publish it in a “small circulation magazine” but should not submit it to a national publication. I was livid over this, since the government does not get to say where or by whom you can publish something, once they have approved it. I called my bosses boss and before I could say anything, he said, “I know what you are calling about and I have already taken care of it. They cannot tell you where to publish and we have withdrawn that statement from the approval we issued to you. Congratulations on publishing.” He was a great boss. I published the article in The Office which sent me two versions of the magazine, English and Spanish language editions. I sent the fellow in Washington the Spanish language edition. Since retiring, I submitted two articles for publication approval. Before I left work there, I actually talked to the people in the office that handles what is called “Pre-Publication review” and told them I would be writing when I got out, and wanted to be sure I had the right people to deal with. If you are a “current employee or contractor” there are two rules that have to be followed: (1) the material being published should be unclassified i.e. containing no formal secrets and (2) The material must be “consistent with policy”, meaning of course, that it has to be in line with what the leadership thinks the policy is at that moment. When a person becomes a retired person, that second one is dropped. Well, that is the rule, anyway. Because of my experience with doing this, I sent these articles in for review before I started looking for a publisher, but in spite of that, they asked me where the material would be published. One has to think about this question for a minute. If I already had a publisher, what would the point of having a pre-publication review actually be? The publisher would have seen it already, and presumably others, before it got that far. It is supposed to be a classification review to check to see that none of those Really Big Secrets gets out in the public. It makes no sense to not do that before the document is released to a publisher or anyone else, but it doesn’t seem to be a requirement to wait. My little antennae went up. This year, there was a case where a person published a book with some Very Big Secrets in it and the government had to go around and get those books back[1]. The Army had already approved that book for public release. It may seem that “better late than never” is a good idea, but they must be kidding themselves because it is not possible, these days, to protect something that has already in a publisher’s hands. The secret is now known by several people without any kind of security clearance, and they are usually scattered all over the USA. There would be quite a few computers with this book in it, and it is nearly impossible to get all the copies back. This seems strange, given the current rules for pre-publication review, but it just show the difficulty in a human review of such complex areas, and the antiquated policies that allow it to be done this way. I read a couple of books about the military operations in Afghanistan and wondered, at the time, how such things can get into print when they tell all kinds of Very Big Secrets. They say when certain operations were done, who did them, and how they were carried out. They even talk about what other agencies and countries were doing . These are books that generally describe how well we are doing in some war. They even tell us what the super-secret CIA has been doing in all kinds of places, but you will never hear that from the CIA. They know about Never Say Anything and they do a good job of following that rule. The rest of the government falls a little short. The classic example of this is the way CIA handled the deaths in Khost, Afghanistan where several sources said they had lost 7 people when an agent blew himself up in their midst. Just a cursory view of the stories from that week will point out that it was not the CIA telling about what happened there. Everybody at CIA said "no comment" when asked about it, including the Director. This is what you are supposed to do. Later, there was a report issued by CIA admitting that mistakes were made on several fronts, which is not exactly a secret. Press speculation created all kinds of examples of "what actually happened", but nobody will ever know what happened, because CIA keeps their mouths shut. So where, early on, do we get stories about the agents, the spy, the bombing, and all the rest? The New York Times and Financial Times quoted “a U.S. official”. In other articles, “some members of the Obama Administration” are quoted as saying the Times Square bomber was a similar intelligence failure [2]. This gets into the business of one intelligence agency criticizing another, through proxies, in other places in government. Every time someone is caught trying to blow something up, there can be an intelligence failure for not preventing the incident from getting as far as it did. These are what might be called "nested secrets" because they are secrets, inside other secrets, told by third parties so the real person jabbing will not be seen as the one doing it. They poke at each other all the time, but it is all in good fun. A couple of others also quoted “former CIA officials” and MSNBC quoted “Western Intelligence Officials” which is really extending things a bit, since we are now talking about the possibility that the sources are not from the US.[3] They could be anyone, anywhere, though probably not Syria, Cuba or Iran. Anybody who has ever touched an intelligence service anywhere and who might know something, or be able to speculate on it, can talk about it even though we know that it is a Very Big Secret. These are the kinds of Very Big Secrets that need to be protected because people can get hurt when they aren’t. The first article I wrote that had to be approved by the government was submitted for pre-publication review in October of 2010. It was a parable on software licensing (never mind, it is too hard to explain) and that was returned in a week – “approved”. The second was an article critical of the Defense Department and a couple of offices in the Director of National Intelligence. Neither of these agencies are surprised by criticism and both get more than their share of it. They just needed a little more. The second one did not come back. Instead, I got an e-mail from one of the people in the approval office that asked me if I had ever signed a non-disclosure agreement while an employee or a contractor of the place I submitted it to. This was an odd question, given the circumstances, because it was the precise reason I was sending it to them to begin with. My antennae were moving higher at this. The AgreementSince working in Defense, I had worked for many different places that require a signature on what iseuphemistically called a “non-disclosure form”. It is really a form created by the Justice Department called the Form 4414, which says in part, “I understand that the purpose of the review described in paragraph 4 is to give the United States a reasonable opportunity to determine whether the preparation submitted pursuant to paragraph 4 sets forth any SCI. I further understand that the Department or Agency to which I have made a submission will act upon it, coordinating within the Intelligence Community when appropriate, and make a response to me within a reasonable time, not to exceed 30 working days from date of receipt.” I have signed agreements in 20 different places since leaving Defense, including the FBI, but the Defense Department decided they were the ones who should do the review of this particular paper, and claimed a right to review anything else I published. I was going to go back to the FBI and ask them what they thought about that, but someone else intervened for me. Most people in those government circles will not. The Form 4414 is not a non-disclosure form; it is a censorship agreement, so described by Michael Whately in his article on the foundations of the policy governing its development. I had never heard it described that way before, but there is not much written about it. I certainly liked President Reagan and was happy to serve under him while he was in office, but I really had no idea what he was doing in the area of pre-publication approvals, nor any understanding of why this was happening. It so happens, 1983 was a predecessor of the Year of the Spy, 1985, and most of the spies were arrested in 1984. I was teaching at the Defense Security Institute during that time, so it came back in a flash, that we were inundated with spy stories to tell our students. It is both motivational, just to think there are real spies, and educational, to see how spies actually do steal information. I should add that none of these people were publishing information in their local newspaper, or a magazine; they were stealing it to give to some foreign government. The big story, in our circles, was John Walker who had been doing the worst kind of espionage and selling codes that would allow Russia to decode things we had encrypted. He did some of that right here in Virginia and was born in Scranton Pa, where my wife and I had both lived at one time. Jonathan Pollard was caught spying for Israel and there was such consternation about a friend, particularly a friend that we spent millions of dollars a year on, spying on us. Every year, Israel asks the President of the United States if Pollard can get out of jail long enough return to Israel, but nobody has let him do that yet. In addition to him, there was Sharon Scranage and Larry Wu-Tai Chin from the State Department and CIA. Scrange was a wonderful case because she had been romanced by a Ghanian intelligence officer who managed to get her to talk about the identities of CIA undercover officers in that country. We were constantly trying to convince our students that people would fall victim to this sort of thing, but, in her case, we had a real-world example. Chin was a spy for 30 years, in three different organizations, so we had examples of how spies were able to continue on without detection, even moving from one place to another. Ronald Pelton, who spied from NSA, and Edward Lee Howard who was never caught but was identified and fled to the USSR were both educational because of the sensitivity of the things they were giving to the Russians, who were not our friends at that time. There was Randy Jeffries who was stealing and tried to sell classified Congressional testimony to the Russians. All of these stories made security education very easy, but people in government were very uneasy. This was a lot of spies, and most of them were arrested after the signing of this Executive Order, but people in the National Security Council would have known about the on-going investigations and been very concerned. Frederick Whatley, an attorney with the Cleveland law firm of Walter, Haverfield, Buescher & Chockley, wrote an analysis, in May 1984, that described the background and changes that were actually being implemented. Whatley had been following the Snepp case, which the Supreme Court had just decided in 1981, which gave the CIA the right to "control sensitive material in order to protect the compelling state interests of (1) the secrecy of information important to our national security, whether it be classified or not; and (2) the appearance of confidentiality of our intelligence agencies.... [4]" It would be difficult to be critical of the CIA for prosecuting Snepp. In the finding of the court, there was this little side note saying Snepp had not submitted his book for pre-publication approval and had deceived CIA into believing he would. [Note: For legal scholars, Whately portrays Snepp as a person who was never going to write about things that were classified.] "Under DOJ 2620.8, an employee will have to sign a lifetime censorship agreement, promising not to publish any information that contains (1) any SCI (sensitive compartmented information), any description of activities that produce or relate to SCI, or any information derived from SCI; (2) any classified information from intelligence reports or estimates; or (3) any information concerning intelligence activities, sources, or methods. ... Moreover, as noted above, the order uses the phrase, "any information," the same phrase that was held unconstitutional in Marchetti, but was upheld in the Snepp decision…” [5] Marchetti was the same kind of thing, by the way. Marchetti had published a book; did not get it reviewed, and CIA thought it had some classified material in it. Marchetti thought he had a First Amendment right to write his book anyway. The appellate court had said this about Marchetti's rights and the First Amendment: “As we have said, however, Marchetti by accepting employment with the CIA and by signing a secrecy agreement did not surrender his First Amendment right of free speech. The agreement is enforceable only because it is not a violation of those rights. We would decline enforcement of the secrecy oath signed when he left the employment of the CIA to the extent that it purports to prevent disclosure of unclassified information, for, to that extent, the oath would be in contravention of his First Amendment rights.”[6] Had it not gone to the Supreme Court, prepublication would not be done the way it is now. That was not a big surprise, but what followed in Whatley’s analysis of NSDD-84, sure was. "... The lack of one governmental agency sets our country apart from almost all others. This lack is a blessing bestowed on this country by the libertarian heritage of its founders, and it is a cornerstone of a free society. The agency we lack? A government censorship agency." [7] My first reaction to this was “A What?” because it seemed so odd that anything of the sort could have been considered. It seemed like something we would never want to do or contemplate. "The Reagan Administration proposes to remedy this deficiency and clearly contemplates either one large censorship board or several smaller boards contained within the various governmental units. One "trial balloon," put forward by Assistant Attorney General Richard K. Willard, proposed that penalties up to $5,000 plus an unlimited amount for damages be meted out to those who leak classified information. These penalties and/or damages would be determined by administrative officers rather than judges. Moreover, such an officer would hold a closed hearing to which even the lawyer for the alleged "leaker" could not gain entry unless he had been cleared to receive classified information.” [8] Is this the Ronald Reagan I remember? Sure, he was a little bit right wing, on occasion, but to suggest a censorship board was not a little-right-wing kind of thing. How could something like this have been contemplated? It took awhile to figure it out. The Handle of the HammerWillard’s trial balloon was trying to get at an issue of who should do reviews of unclassified information inthe Federal government. If we were going to have reviews of unclassified information, it would be better to have those done by someone who was quasi-independent, than by the agencies that are trying to prevent information critical of how they do business, from becoming public. He may have been right about it, in that context. This somewhat restores my confidence in Ronald Reagan, though it will probably have little effect on my feelings towards the way pre-publication reviews are done. Somewhere along path of "prepublication review" I started to think about the defectors idea that he could tell the difference between the people around him who acted free. I don’t feel as free as I did once. Marchetti and Snepp were not acting free; they were making money, or trying to. But, I'm wondering about the other thousands of people who have written things critical of the way the Intelligence or Defense Communities manage their programs, only to see them buried somewhere in the Pentagon or the Director of National Intelligence. This doesn't sound like America the Beautiful, Land of the Free. It’s been almost 30 years since this whole things began and we need to change the system that allows this kind of review to go on and on, without recourse. In 2009, a federal court held most of the objections to a book about an FBI program, submitted for pre-publication review in 2001, to be unsubstantiated. “The 41-page, partially redacted court ruling reviewed the facts of the pre-publication review dispute as well as the legal standards for official censorship of such materials, and dismissed all but one government objection to the manuscript....”[9]. I’m not sure about the Censorship Board, but it may have more merit than we thought if some methods could be found to make it more open than was originally proposed. I personally favor a Review Board that operates from the Information Security Oversight Office. This is where challenges are made to the classification of a document when two agencies disagree about it, and they have responsibility for resolving that kind of issue. One way or another, a person who has difficulty should have an appeal process that is trusted and outside the agencies that are slow to respond. There should be a way to make them show cause for this kind of behavior, without getting an attorney. Most of all, I don’t like the feeling that this has given me. After 45 years of working for the government, I know what government is for. You don’t have to be Left Wing or Right to see that. It is not for protecting itself, covering up its mistakes, and papering over its use of money that was given to them by people who work just as hard as they do. We deserve better than that from people calling themselves “public servants”. It may take me a little while to get this approved for public release, but I know I can tell the difference between people who are free, and ones who are not. [The Pre-Publication Review Office of the Director of National Intelligence approved this paper the same day it was submitted for public release.]
[1]Catherine Herridge, Exclusive: Pentagon Attempts to Block Book on Afgan War,
September 10, 2010 http://www.foxnews.com/politics/2010/09/09/military-intelligence-attempts-block-book-afghan-war/
[2] Dombey, Daniel, CIA admits errors led to Afghanistan attack,
http://www.ft.com/cms/s/0/ac0408f4-dbe5-11df-af09-00144feabdc0.html#ixzz161DdkWgs and Windren, Robert and Engel, Richard, NBC News, http://www.msnbc.msn.com/id/34687312/ns/world_news-south_and_central_asia
[3] Windren, Robert and Engel, page 2
[4] Frederick W. Whately, Reagan, National Security, and the First Amendment: Plugging Leaks by
Shutting Off the Main, 8 May, 1984, Copyright Cato Institute, http://www.cato.org/pub_display.php?pub_id=903
[5]Whately, page 3
[6] 466 F. 2d 1309 - United States v. L Marchetti, United States Court of Appeals, Fourth Circuit, See 93 S. Ct. 553
[7] Whately, page 3
[8] Whately, page 8
[9] Steven Aftergood, Court Rebuffs FBI Censorship of Manuscript, http://www.fas.org/blog/secrecy/2009/05/court_rebuffs_fbi_censorship.html
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Sunday, September 8, 2013
Acting Free
I reprinted this popular article from my website. With all the new people in Washington talking about what we may or may not do in Syria, it seemed like a good time to repeat it.....
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