Nondisclosure Nation: A History, From Ober to Assange
Editor's Note: A UN panel has reportedly ruled that Julian Assange is being detained unlawfully in London. This seems like a good time to revisit Mark Ames' comprehensive history of non-disclosure agreements (from Ober to Assange) first published in NSFWCORP's print edition in July 2013. The piece has never before been available online.
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Nondisclosure Nation: Part I
"If [Snowden] were charged with relatively minor leaking offenses I wouldn’t be outraged" Glenn Greenwald
"There’s no question today that [the government secrecy apparatus is] far, far worse... primarily through secrecy agreements. The development of those secrecy agreements really made what we have today possible." —Christopher Pyle, Army whistleblower who exposed illegal military domestic surveillance program during Vietnam War
A couple of weeks ago, I got a prickly message from Julian Assange’s Twitter account, @WikiLeaks. It was in response to an article I’d tweeted about how Assange had made his WikiLeaks colleagues sign non-disclosure agreements. The penalty for breaking the contract was reportedly $19 million.
Julian was not amused:
@MarkAmesExiled We used to like your writing in Exiled mark. Exiled also had the best book review "The Revenge of the Second Banana."
(The book review Assange referenced was Ramon Glazov’s brilliant takedown of Daniel Domscheit-Berg’s tell-all memoir, "Inside WikiLeaks," published in The eXiled in 2011.)
Yep, Julian Assange nailed me with the ol‘ "your first album was your best" zinger – been getting zung with that one for a good 15 years already. If you’re in the business of offending people, it goes with the territory.
But judging by his bitchy tweet, it seems Assange misunderstood my complaint about his nondisclosures. He assumed I was merely "gotcha"-ing him, catching him with his hand in the hypocrisy jar. And, yes, it is a glaring anomaly that a leader of a guerrilla movement dedicated to waging war on secrecy suddenly turns around on his own WikiLeaks comrades, and enforces censorship and secrecy contracts that threaten them with ruin should they dare live by the same high ideas about openness demanded of everyone else.
The hypocrisy is annoying, but Assange was seriously missing the point. When it comes to radical projects and politics, I’m less bothered by hypocrisy than a lot of people are —hypocrisy is undoubtedly offensive, but every successful radical project fighting against overwhelming Death Star odds has to adapt and mutate, sometimes almost unrecognizably so, but only if that mutation has been fully fleshed out and worked into the bigger politics.
Far more serious than the question of whether or not Assange is a hypocrite in the general sense is his use of nondisclosures, in particular, as a tool of secrecy and oppression.
I answered him:
@wikileaks You still like my writing, you’re just afraid to admit it. But tell me seriously, what the fuck with the non-disclosures?
A few days later, he answered my question:
@MarkAmesExiled The difficult nature of realty? [sic]
The unsure, friendly question mark at the end was perhaps Assange’s way of admitting that maybe it wasn’t the smartest thing he’s done (?). But he’s not sure why (?).
In fairness to Julian Assange, he’s not the only person unclear about the role of non-disclosure contracts in the National Security surveillance state. Nearly everyone lined up on Edward Snowden’s side is ignorant of the central role nondisclosures play in enforcing the secrecy apparatus. That’s the same secrecy apparatus that has allowed the NatSec state to expand blob-like into every corner of our lives, operating with impunity.
No one thinks about nondisclosure contracts as a NatSec State weapon because they aren’t as sci-fi sexy/scary as the cutting-edge technologies used to spy on people. Nondisclosures don’t have that techno-dystopia novelty offered by PRISM or drones. In fact, there’s nothing as depressingly Old World and anti-climactic as an employment contract spelling out the nondisclosure agreement.
And yet one of the three criminal charges filed against Edward Snowden is "Theft of Government Property" under US Code 641. This is the criminal code used to prosecute government leakers who violate Standard Form 312, the standard government nondisclosure contract used to gag hundreds of thousands of government employees under threat of imprisonment and fines. Those who refuse to sign the nondisclosure can say goodbye to their careers.
You might assume it’s always been this way — that nondisclosures have always been an essential part of the contractual relationship between government and employee. You’d be wrong.
Government nondisclosures are a relatively recent phenomenon, the result of policies cooked up by NatSec apparatchiks tasked with building an effective secrecy apparatus to protect the empire’s worst and darkest secrets.
Those apparatchiks are not household names, nor are they the ostentatious dumb-ass fascists that Bush had running around his administration. They are people whose names you’ve rarely, if ever, heard: patient, smart, determined, and driven by the idea that the American public is the real enemy of American power.
In my earlier two-part NSFWCORP series on the modern war on whistleblowers ("NSA Whistleblowers For Dummies"), I wrote about a senior CIA counter-intelligence officer named Richard Ober. In 1971 Ober drafted a comprehensive secrecy plan for President Nixon that wound up serving as the blueprint for the secrecy-and-censorship infrastructure in place today.
For a CIA figure as historically important as Richard Ober, there’s surprisingly little information available on him — even a dozen years after his death (Ober died on September 11, 2001 — as if to fuck with Alex Jones on his way out).
The best account we have is a book by investigative journalist Angus MacKenzie, author of the excellent "Secrets: The CIA’s War At Home" — published posthumously after MacKenzie’s death by brain cancer in 1994. MacKenzie described the double-irony of the fact that the architect of America’s security apparatus was himself a living secret:
Richard Ober’s name is curiously absent from indexes of books about political spying of his era. Ober managed to keep in the shadows — a force behind the scenes, a man careful to say nothing that would reveal his true role. Few of his associates would even admit to knowing him. It was a breach of code when one associate gave me a rough description of Ober as a big man with reddish skin and hair.
From the late 1960s through the early ’70s, Ober ran the illegal CIA domestic spying program, MH-CHAOS or "Operation Chaos," which was busted open by Seymour Hersh in his famous series of articles for the "New York Times" in late 1974. Those articles directly led to the Church Committee and Pike Committee, to the temporary dismantling of the CIA, and to a politics that brought the NatSec beast under democratic oversight, if only for a few fleeting years.
So Ober headed the illegal spying program that brought it all crashing down, but he also created the blueprint for the secrecy apparatus used today by Obama to wage war on whistleblowers from Thomas Drake and John Kiriakou to Edward Snowden.
Ober first emerged from the shadows of the Cold War as the CIA’s point-man to take on Ramparts magazine, which in the late 1960s exposed and ruined two major CIA front operations. The first used Michigan State University as a CIA front for the "Vietnam Project" advising and managing South Vietnam’s disastrous government and police forces. The other one saw the CIA co-opt the National Student Association, a once-powerful group for college students that had numbered three million members.
Both of those programs, when exposed by Ramparts, led to embarrassing Congressional hearings and media scrutiny on a scale the CIA wasn’t used to. So the Agency appointed Ober to head a secret team that spied on hundreds of Ramparts staffers, investors and associates — journalists, editors, researchers, donors, advertisers... The CIA placed a snitch in the magazine’s inner circle, and unleashed some dirty tricks to undermine and ruin Ramparts’ operations.
That was in 1967. With that illegal domestic spying apparatus now in place, Ober’s team was assigned more work spying on other American dissidents and critics. Eventually that led to "MH-CHAOS," which grew so large that it had a staff of over 60 CIA officers and agents. They collected files on and opened the mail of over 300,000 Americans, perhaps many times more than that at the program’s peak in the Nixon years.
The CIA was legally barred by its original charter from engaging in the sort of domestic spying on Americans that Ober operated. MH-CHAOS was illegal, plain and simple — a "mistake." Reagan would later legitimize this mistake on the sly, by signing Executive Order 12333. Nearly everyone today thinks that order was all about outlawing foreign assassinations; in fact it legalized CIA domestic spying operations so long as they’re conducted in "anti-terrorism" operations. The recently-exposed CIA-NYPD spying program on American Muslims is one example of the sort of CIA domestic spying made legal by Reagan’s executive order.
But I’m jumping ahead — back in Ober’s time in the late 1960s and early 1970s, the massive CIA domestic spying program, set up by CIA director Richard Helms, was still clearly illegal. And that made Ober and the handful of CIA execs who were in on the dirty secret worried about their own legal liability — people such as directors Helms and Bill Colby, counterintelligence chiefs James Jesus Angleton and Thomas Karamessines. To keep the illegal domestic spying program a secret, they hid it from everyone else in the CIA; Ober was instructed to run "Operation Chaos" from deep down below Langley, inside a secure vault.
In 1975, after Seymour Hersh exposed the illegal espionage program, Ober confessed to the Rockefeller Commission that his worries began the day he was given the job of running the "Chaos" program. Ober recalled his August 15, 1967 meeting with CIA counterintelligence chief Angleton, who told him that his domestic spy operation targeting the American student left and black radicals had been given the highest "operational priority" by the CIA – a priority equivalent to Agency operations against the Soviets and Red China. Ober said he was "stunned."
"I can still vividly remember saying to myself at that moment, as I walked back to my office, that I had a bear by the tail. I was convinced then that the project would ultimately leak with explosive results."
To prevent those feared leaks, Ober made everyone who was privy to the MH-CHAOS program sign a secrecy contract, or nondisclosure. Take a moment to drink that in: Government NDAs were used to protect an illegal and unconstitutional spying operation from being found out by its victims. They were not used to protect American national security interests from foreign enemies, but to protect CIA criminals from their American victims and from the law.
The nondisclosure contract read, in part:
"I recognize that this project is particularly sensitive, and I will not reveal it to anyone who is not also known to me to be cleared for this information, and I will call this [telephone] extension to find out if he is cleared, if I have any doubt."
In the late 1960s, nondisclosure contracts for government employees were not unheard of, but they were still comparatively rare for those outside of the intelligence community — at the time, the Espionage Act was considered a more useful tool to scare or punish government leakers. Even where nondisclosures were routinely used, oftentimes the government agencies were lax about making sure they were signed and properly filed. For one thing, no one knew how effective they would be should a government employee ever challenge a nondisclosure in the courts.
The government’s pre-Reagan-era ambivalence towards nondisclosures made it a lot easier for Ramparts to expose the CIA programs with Michigan State U. and the National Students Association. In both cases, both whistleblowers who leaked to Ramparts — MSU economics professor Stanley Sheinbaum, and National Student Union fundraiser Michael Wood — had not been compelled to sign nondisclosures.
This was also the case with Army counterintelligence captain Christopher Pyle, perhaps the most successful and thorough military surveillance whistleblower of our time. Like Sheinbaum and Wood, Capt. Pyle’s whistleblowing on the Army’s domestic spying program targeting American activists was protected by the fact that the Army couldn’t find his nondisclosure contract. Either Pyle hadn’t signed a nondisclosure, or the Army had lost it — a carelessness that would be unimaginable today.
Pyle is generally considered to be the whistleblower who inaugurated a trend in the 1970s of government employees exposing one illegal or shocking program after another. In 1970, Pyle broke open a massive US-Army-led domestic surveillance program that infiltrated anti-war activist groups on college campuses and black activist movements, and that kept files on tens of thousands of Americans, including some liberal members of Congress like Sen. Adlai Stevenson. At hearings led by North Carolina Sen. Sam Ervin, Pyle revealed that between 1967 and 1970, every single protest on American soil involving more than 20 people had been surveilled or infiltrated by undercover Army Intelligence agents.
The story of Capt. Pyle makes an interesting and instructive contrast to Edward Snowden in terms of how he managed his leaks, the media and the politics.
"I leaked to different members of the press, never to just one member of the press," Pyle told me from his office at Mount Holyoke College in Massachusetts. "I worked very hard not to allow the story to become part of a partisan battle. The Democrats on the Hill wanted to blame Nixon; the Republicans on the Hill wanted to blame Johnson. I told both sides, ‘You’re wrong...’ I thought it was important not to let the story get exaggerated."
Pyle adds that one of the keys to the success of his Pentagon-spy whistleblowing was that he deliberately and carefully made sure the story was never about him: "A lot of other [whistleblowers] were partial[ly] successful or fizzled, but the Army story really worked. And part of that was because I kept a very low profile. I avoided the press — I wouldn’t let the press talk about me. I told [New York Times correspondent] Halloran, ‘Do not turn me into the Ralph Nader of the intelligence community.’"
In Halloran’s reports on the domestic Pentagon spying program published in the Times, Pyle comes off as an earnest, hard-working American Son. A descendant of Pilgrims, raised in Plymouth, Massachusetts, Pyle earned a law degree from Columbia, an MA in government law, and was working on his Ph.D. while serving in Army intelligence, where he rose to head the legal section in the Army’s Department of Counter-Intelligence. When the Army’s spying operations against US dissidents and leftists metastasized out of control towards the close of the ’60s, and the cultural momentum shifted sharply leftward, Pyle quit his post in the Army and exposed the program in a series of bombshell articles published in the Washington Monthly in 1970 and 1971.
Pyle had originally offered his whistleblowing story to the New York Times Sunday Magazine, but they didn’t see much value in it: "They rejected it, saying it was only worth a few paragraphs in a much larger article about Big Brother," Pyle tells me.
Over a year later, the Times relented and decided that the story was newsworthy. By that time, the Senate was preparing hearings on one of the biggest military scandals of the Cold War era.
In a 1971 profile on Pyle in the Times headlined, "An Expert In Counterintelligence: Christopher Howard Pyle" he laid out his reasons for going public:
Mr. Pyle says he undertook the project of exposing the Army’s domestic intelligence operation ‘because I came out of military intelligence realizing that they had created the apparatus of a police state.
’These were well-intentioned men who were obeying orders and trying to please their superior officers, but I was worried about what other and evil men might do with it,’ he said.
So far, this statement sounds similar to Edward Snowden’s first interview from the Hong Kong hotel, when he articulated why he blew the whistle on PRISM —before he lost control of his story and his life.
After that, though, the similarities between Snowden and Pyle quickly fade. Pyle went on to explain that not only did he fear an encroaching police state, but that he wanted to change the system from within and make it work.
Remember in 1971, under the "liberal consensus," trust in government and politics, the ability of government and politics to change things for the better still scored high with the general population. The Baby Boomer cynicism and hippie hatred of authority and government hadn’t overtaken the post-New Deal sense that politics and government could change things for the better.
As Pyle told the Times:
"I wanted to see if it was possible to touch the system and make it respond to resolve an issue without destroying it. So many students today are convinced that things can’t be changed. I wanted to see what one individual, with no resources and living on the G.I. Bill and borrowing money, could do."
Compare that with Snowden’s alienated, libertarian assumptions – he’s absorbed libertarian clichés so deeply that even an act of self-sacrifice is portrayed as an act of "self-interest:"
"I don't see myself as a hero," [Snowden] said, "because what I'm doing is self-interested: I don't want to live in a world where there's no privacy and therefore no room for intellectual exploration and creativity."
..."Transparency is [my goal.]"
Pyle managed and engaged the fallout from his story like a workhorse: After his Washington Monthly articles sparked outrage in Congress, Pyle worked with the staff of Sen. Ervin’s Subcommittee on Constitutional Rights, and spent 18 months putting together a 73-page report described by the Times as "wide-ranging and painstakingly detailed":
[Pyle] has interviewed from 60 to 80 other former agents to gather information, has developed extensive files on Conus Intel [the Army’s domestic spy program], has become a major contact point for newsmen interested in checking on the Army’s operation, has provided reams of information to the Senate Subcommittee on Constitutional Rights and others on Capitol Hill, has given information to the American Civil Liberties Union for court suits, has drafted legislation intended to keep the Army out of political surveillance, and has written more articles.
...He plans to teach after receiving his [Ph.D. in political science] and to continue taking on public issues in the same manner in which he has gone after the Army’s Conus Intel operation.
He says that, in his efforts to persuade the Army to cease its domestic intelligence activities, he has tried not to jeopardize the job or security of military intelligence agents or the legitimate functions of military intelligence. He says he has been particularly careful not to serve the interests of a foreign power by his disclosures and that no secret material has come from him.
Pyle was grimly determined, and eventually, for a fleeting moment, his momentum and energy paid off. Thanks to him and scores of earnest, well-intentioned whistleblowers, new laws put limits on the NatSec state. They were the best – really the only -- such laws of the past sixty years. In the Times profile, Pyle looks like a typical square — short hair, horn-rimmed glasses, a bit fleshy — yet the caption below the photo reads, "Exposing the apparatus of a police state."
Snowden, by comparison, was living out a kind of real-world Jason Bourne drama – with his dancer-babe girlfriend, his Hawaii-to-Hong Kong glamour, his relationship with the publicity-savvy Glenn Greenwald and Laura Poitras. In his "coming out" article by Greenwald at "The Guardian" – and accompanying video by Poitras — Snowden played up the drama:
"Yes, I could be rendered by the CIA. I could have people come after me. Or any of the third-party partners. They work closely with a number of other nations. Or they could pay off the Triads. Any of their agents or assets."
Forty years earlier, whistleblower Pyle presented himself as Snowden’s opposite: colorless, undramatic, heavy-set, uncool... it was almost as if Pyle had doused himself in media-repellant:
Mr. Pyle lives with his wife, the former Cynthia Fry, in a modest, book-lined apartment near the Columbia campus in New York. They have no children. Mr. Pyle is a round-faced, stocky man who speaks softly and laughs easily. But he is persistent as a hound on the trail.
...Mr. Pyle shuns publicity and has left it to others, for the most part, to speak out publicly. He says that too much publicity would only impair his effectiveness in trying to make changes.
To understand just how different Pyle was from the typical ’60s radical of his time, compare Pyle’s style of speaking with that of his far-out contemporary, Jerry Rubin in his famous "Yippie Manifesto":
We do not advocate political solutions that you can vote for. You are never going to be able to vote for the revolution. Get that hope out of your mind.
And you are not going to be able to buy the revolution in a supermarket, in the tradition of our consumer society. The revolution is not a can of goods.
What’s disturbing about Jerry Rubin’s asinine Yippie blather is how it reads almost word-for-dumbshit-word like all the Twitter-tantrum blathering tapped out by the legions of online anarcho-libertarians. Rubin even writes in 140-character fits:
Damn right, we’re for anarchy! This country is fucking over-organized anyway. "DON’T DO THIS! DON"T DO THAT, Don’t!"
Growing up in America is learning what NOT to do.
We say: "DO IT, DO IT. DO WHATEVER YOU WANT TO DO."
I remember Doug Henwood once saying that all those Twitter anarchists were marketing larvae — I wonder if he was thinking of Jerry Rubin’s transformation in the mid-1970s into the marketing scum he was destined to become.
Even Rubin’s silly, infantile attacks on schools and professors read like a common, half-baked 21st-century blog rant:
Classrooms are totalitarian environments. The main purpose of school and education in America is to force you to accept and love authority, and to distrust your own spontaneity and emotions.
How can you grow in such an over-structured environment? You can’t. Schools aren’t for learning.
Classrooms should be organized in circles, with the professor one part of the circle. A circle is a democratic environment.
Try breaking up the environment. Scream "Fuck" in the middle of your prof’s lecture.
... Scratch a professor deep and you find a cop!
Rubin’s manifesto merely roped together a series of Jerry Rubin temper-tantrums and converted them into what passed for politics. Then he lost interest when it became uncool. A few years after "Yippie Manifesto," Rubin dropped the politics, took up yoga, jogging and self-improvement meditation, cut his hair, shaved his beard, and bragged about how young and good he looked:
"I entered rooms and no one knew who I was, because I didn’t fit their image of me. I was thirty-five but I looked twenty-three."
Rubin married a debutante and moved to the Upper East Side, got a job on Wall Street, made millions on stocks and later peddled a nutritional health drink called "Wow!"
"I know that I can be more effective today wearing a suit and tie and working on Wall Street than I can be dancing outside the walls of power."
Rubin’s trajectory from infantile pseudo-radical to Big Chill Randroid pursuing his "self-interest" mirrors the broader cultural trajectory of the past few decades away from politics and inward, absorbing the pursuit of self-interest as the major premise. And Rubin’s libertarian-ward trajectory tracked other larger trends, like the forty-year trend of worsening inequality, worsening political alienation, and a National Security state and the secrecy apparatus that makes the world Pyle fought look as harmless as Iceland by comparison.
But here’s the strange thing — our world couldn’t be less like the world that created Jerry Rubin and his "Yippie Manifesto" — Rubin’s world was dominated by a liberal establishment; income inequality was far less than it is today; belief in politics was at a high point; and yet, even though we live in the antithesis of Rubin’s world, for some reason we’re responding to it like Jerry Rubin in reverse, going anarcho-libertarian infantile when the state is at its most sophisticated, going dumb when the NatSec beast is at its most formidable.
Today, leaking is its own radical politics, an end in itself; freeing information is considered revolutionary and transformative, on the theory that it sets off a Hayekian chain reaction of random events. Disruption:. Reset. Just make the NatSec state angry, then tweet a bunch of clever 140-character slogans in their faces, mock some Obamabots, and any day now, the whole thing is bound to collapse, giving rise to a crowd-sourced spontaneous equilibrium. That’s part of the reason why Snowden’s diehard supporters say they can’t see anything to criticize about his disastrous defection to Putin’s Russia, no matter how much damage he’s doing to local Russian human rights struggles (complaints from beleaguered Russian human rights activists are starting to grow louder), or how much damage Snowden has done to his initial and rather impressive expression of his principles.
To a depoliticized public like ours, vandalism is a form of politics. For most Americans, politics doesn’t get any more radical than putting a bug up the NatSec state’s ass the way Snowden has managed to do quite impressively — just put the bug up its ass, crowd-favorite your support on social media, or 140-character-assassinate Snowden’s detractors, and voila! The revolution is as good as sealed!
Sen. Ervin was powerful enough to chair the Watergate Committee and force a president to resign from office — but he wasn’t powerful enough to convert the incredible revelations about Pentagon domestic spying unearthed by Christopher Pyle and his 125 agents around the country into lasting legislation. So Sen. Ervin, Pyle, and their supporters turned to the courts to outlaw the Army’s domestic spying programs on US citizens. But the Nixon Supreme Court rejected their case. Even in the year of Watergate — 1974, when the executive branch and the National Security state’s power were at their nadir — Sen. Ervin could not convert all the capital he’d built up in the Watergate Committee into leverage for a bill he was pushing that would make it a crime for the military to spy on Americans. Even in the rebellious atmosphere of that year, and even with 34 Senators co-sponsoring Sen. Ervin’s bill, he couldn’t get it to the floor for a full Senate vote.
Pyle tells me that the bill was blocked from a vote by an old Mississippi Dixiecrat, Sen. Jimmy Easton:
“Jimmy Easton blocked it,” he says, somewhat despondently. “He was an old anti-Communist. There were a lot of them in Congress.”
It wasn’t until the Church Committee findings, and the brief window in the first two years of the Carter Presidency, that some meaningful legislation was finally passed curbing domestic spying on Americans.
But all the accumulated energy and momentum from years of whistleblower scandals and leaks resulted in fragile half victories; just a few years later, Reagan was elected president, a decade’s efforts were reversed, and the whole National Security State snapped back into place with a vengeance, this time doing its best to ensure it wouldn’t be threatened by whistleblowers ever again.
“People” are telling me that my criticism of Snowden’s anti-politics has been lost on the American audience, who themselves are so de-politicized they don’t even know what the fuck I’m talking about when I use the word “politics.” One friend told me, “Ames, you’re writing to people who are only capable of grasping simple binaries. There’s no nuance or thinking this through, don’t fool yourself. It’s simple: Either you’re for Snowden, since he is the underdog; or you’re an Obamabot liberal fascist.”
“’People can go fuck themselves,” I said. “Why the fuck should I pander to morons?”
“That’s ‘Morans’ Ames. The morons evolved while you were out in Russia.”
Well, at some point you have to say too fucking bad — write what you know, that’s the only advice that’s ever worked.
Which brings me back to Villain Number One: CIA counter-intelligence spook Richard Ober, and his obsession with nondisclosure contracts as the foundation of the NatSec state’s secrecy apparatus. One giant question hangs over all of this, and it’s a question that can only be decided politically: Why should nondisclosure contracts be allowed to muzzle your freedom of expression, when free speech is a First Amendment right in the Constitution? I don’t see the words “contracts can legally suspend your Constitutional liberties;” I doubt you can sign an employment contract in which you agree to become a slave, or a contract that forces you to change your religion, or a contract that forces you to renounce your second amendment rights for the rest of your life.
Hell, even if it wasn’t in the Constitution, why should we blindly accept nondisclosure agreements as something normal? By their very nature, nondisclosures restrict our liberties, our humanity — why accept them as an unfortunate but unavoidable fact of life? Why is your first instinct to justify or rationalize nondisclosures as necessary? Why is it your job to protect business investments and foster entrepreneurship? Why isn’t your first knee-jerk reaction outrage that our system prioritizes the power of contracts over our individual rights spelled out in the Constitution? What’s the point? What do you have to gain, besides an imagined pat on the head?
In 1972, government nondisclosure agreements got their first major court test. That year, a disillusioned ex-CIA officer named Victor Marchetti was preparing to publish an unflattering and explosive book about the dark side of the CIA. Marchetti had held a key post in the CIA that essentially made him a liaison between top executives of different branches in covert operations, where the Agency’s most tightly-held (and illegal) secrets are kept. After retiring, Marchetti started writing: a spy novel in the early 1970s called “The Rope Dancer,” and articles for The Nation that were critical of the CIA. When word got out that Marchetti was working on a manuscript exposing the CIA’s dirty secrets, the Agency panicked — would Marchetti spill the beans on Richard Ober’s MH-CHAOS?
CIA director Helms ordered agents to put Marchetti under round-the-clock surveillance, while the CIA’s counsel went to a Virginia court to get an injunction against Marchetti’s publisher, Alfred A Knopf, blocking publication of the book unless Marchetti first submitted the manuscript to CIA censors. The Agency’s case against Marchetti rested on the nondisclosure contract he’d signed when he was still in the CIA, committing him to lifetime secrecy.
At that time, no one was sure if a nondisclosure would hold up in the courts. As Angus MacKenzie and others point out — and as internal memos from the CIA demonstrate — there was no court precedent establishing the constitutionality of peacetime nondisclosure contracts gagging government employees for life. Nondisclosures might work in the private sector, but if anything, the opposite was thought to hold true in the public sector. The Copyright Clause in the Constitution establishes copyrights and patents for the private sector (Article 1, Section 8, Clause 8); however, US copyright code explicitly forbids the government from owning works created by government employees: “Copyright protection under this title is not available for any work of the United States Government.”
As Pyle explains, a republican form of government cannot, by definition, copyright information that belongs to the people that the government serves. Back in 1971, before nondisclosures for government employees were tested, Pyle says he was ready to fight in a court of law if necessary:
“Had we gotten to court, and a secrecy agreement been found (or manufactured)... and they had charged me with stealing information, I would have pointed out that the government may not copyright its information, which is the only basis in American law for a claim of theft. Unlike the law of Britain's monarchy, which treats government information as the Queen's household effects, we are a republic. That information belongs to the people, especially if it is evidence of government wrongdoing. Those arguments would have had some resonance back then. Now they wouldn't.”
The judge in the CIA v Marchetti case had been convinced by top CIA executives that the agency’s only concern was for national security, not for their own asses should Marchetti blow the whistle on domestic spying. It’s the same old song and dance every time: private worries like “Marchetti’s book could land us all in jail” become claims that “Marchetti’s book threatens the national security of the United States.” That strategy hasn’t changed a bit.
And so in May 1972, US District Court Judge Albert Bryan opened the trial in Alexandria, Virginia, United States v. Marchetti, in which he issued the first landmark ruling favoring the primacy of government nondisclosure contracts over First Amendment free speech rights. The trial was closed to the public — also for “national security reasons” —but years later, Angus MacKenzie located the court transcripts. He found that the CIA successfully framed the case as a simple contract law case, rather than a First Amendment vs. secrecy case. Judge Bryan concurred, ruling that,
the [secrecy] contract takes the case out of the scope of the First Amendment; ... to the extent the First Amendment is involved, the contract constitutes a waiver of the defendant’s rights thereunder.”
Judge Bryan’s reasoning wasn’t far from early 20th-century rulings upholding so-called “yellow dog contracts,” which prohibited employees from joining any union other than the one approved by the company.
Marchetti and the ACLU appealed Judge Bryan’s ruling all the way up to the Supreme Court, but on a 6-3 vote the Court declined to review it; Judge Bryan’s ruling that the CIA could censor Marchetti’s book held.
Marchetti complied and handed his manuscript to the CIA censors. They in turn called for deleting almost 20 percent of the book as “classified” material. When Marchetti’s lawyers challenged the passages one by one before Judge Bryan — easily demonstrating that many of the CIA deletions on national security grounds were already publicly available in newspapers and magazines —Judge Bryan grew indignant at the CIA and decided they hadn’t been acting in good faith with Marchetti or with him. Judge Bryan came to the conclusion that the CIA censors acted capriciously, without guidelines or a rational system in place to define what was classified and what wasn’t.
That led Judge Bryan to issue a new ruling, in which he called for independent judicial oversight of the CIA censorship process. This was exactly the sort of oversight that the CIA was looking to avoid. The Agency’s immediate worry was the possibility of having some outsider judge looking over their shoulders, and in doing so, finding out about the illegal programs like their domestic spying operations.
The CIA couldn’t let a landmark case like this end on an ambiguous note, so despite getting most of what they wanted, they appealed Bryan’s second ruling calling for judicial oversight, and luckily for the CIA, their appeal was heard by a bitter judge, Clement Haynsworth, who was still smarting over the way the Democratic-controlled Congress Borked him from a Supreme Court nomination in 1969 (Haynsworth hadn’t disclosed conflicts of interest in cases he ruled on from the bench). Judge Haynsworth issued the ruling that the CIA was looking for, declaring that when Marchetti signed the CIA’s nondisclosure agreement, he “effectively relinquished his First Amendment rights.”
The ruling was one of those seemingly obscure, arcane tweaks in the code that no one notices until it’s too late. As Angus MacKenzie put it,
“The outcome of the Marchetti case elevated contract law to a rank above constitutional rights.”
In the end, rather than string it out interminably in the courts, Marchetti went ahead and published his blockbuster book, “The CIA and the Cult of Intelligence” including the 168 deletions upheld by the judge — entire pages were left blank and marked “DELETED” which had the effect of boosting sales, and Marchetti’s profile.
In 1976, President Ford’s new CIA director George H. W. Bush instituted sweeping reforms at the CIA, most of which strengthened and centralized the Agency’s power and scope under the guise of “reform” and “banning assassinations of foreign leaders.” The myth still largely persists that Ford’s CIA reforms were all about banning assassinations; in fact, as with Reagan’s reforms, their main purpose was to strengthen the CIA’s powers. Besides centralizing all the budgeting and transferring the little-known, all-powerful National Security Agency out of the Pentagon’s hands and putting it under CIA control, Bush laid down the first, seemingly harmless pillar of today’s secrecy apparatus: a deceptively dull-sounding little bureaucracy called the “Publications Review Board.”
The purpose of the new CIA Publications Review Board was simple: All Agency employees now had to clear books, articles and speeches in advance with the review board, in order to comply with the nondisclosure agreements they’d signed. The review board gave the appearance of professionalism to the CIA’s censorship decisions, thereby addressing and addressing Judge Bryan’s concerns over the Agency’s lack of a clear method. In other words, Bush set up the Publications Review Board to ensure that the CIA censors didn’t have an independent judge looking over their shoulders.
The next challenge to government nondisclosures came in the form of a book written by another former CIA agent, Frank Snepp, who’d served as an officer in Saigon right up to the bitter end. Snepp’s faith in the CIA’s purpose was shaken by what he saw as their betrayal of their allies in South Vietnam. Snepp had been a top CIA officer in South Vietnam from 1969 — when the CIA turned to the brutal Phoenix Program, an assassination program that killed tens of thousands of Vietnamese — until one of the very last helicopters took off from the US Embassy rooftop in 1975. Snepp was bitter at the CIA for throwing their allies to the wolves, then covering it up with a whitewash. So he quit, and wrote a book to call out the CIA.
By this time, everyone was abandoning the National Security State apparatus and defecting to the Boomers’ side. Snitches, soldiers, spooks — the momentum was going against those old ways, it seemed by the middle of the ’70s that all that was a relic of a barbaric past. One indicator: A 1975 Harris poll gave the CIA a mere 14% approval rating (7% amongst college-age respondents); by comparison, a 2009 poll taken just after the CIA was accused of lying to the Speaker of the House of Representatives about its torture programs revealed that lying hadn’t hurt its standing: 63% of Americans still had a “favorable” view of the CIA, even though trust in government, and especially in Congress, the most representative of all the bodies, had plummeted to new all-time lows.
Snepp didn’t submit his book to the CIA censorship board set up by George H. W. Bush because, he argued, his book didn’t divulge any secrets.
The CIA took a different view: a contract was a contract, and Snepp had broken his contractual agreement.
Ironically, it was Carter’s liberal CIA reformer Stansfield Turner who went after Snepp. Turner was a strange man — in the early 1970s, he tutored young David Bradley, currently the Atlantic Monthly’s publisher. When Turner heard about Snepp’s book, he took it as a personal affront that Snepp hadn’t bothered seeking his approval first. So he took Snepp to court.
Snepp was represented by a top ACLU attorney in Washington, Mark Lynch, who might be one of the most incompetent ACLU lawyers ever to serve in that organization. He was so incompetent that it’s difficult to believe it was anything but a deliberate strategy, though who the hell wants to believe that about the ACLU?
The ACLU attorney’s first mistake, in the eyes of people like MacKenzie and Pyle, was in not challenging the constitutionality of government nondisclosures before precedent was set in stone. Instead, attorney Lynch’s defense strategy was almost designed to piss the judge off: Snepp hadn’t divulged secrets in his book, Lynch argued, so therefore he wasn’t under any obligation to submit his manuscript for review.
The judge nearly blew a gasket:
Judge Lewis: “Do you [ACLU] accept the ruling that he [Snepp] is not the judge [of what is secret]?”
ACLU’s Lynch: “No, we do not.
Judge Lewis, fuming: “So, therefore, [Snepp] is the sole judge of whether giving away — if he thinks it’s not classified because somebody else already knows about it — an atomic energy secret, that he can give it away?”
ACLU: “Our position is that he need not seek Agency prior review if he is not confident—”
Judge Lewis: “I understand. You take the position that the writer has a right to be the sole judge of whether it would injure the United States or not; and therefore, under the First Amendment he has the right to expose anything he wants to expose, as long as in his own mind, according to you, in his own mind it is neither classified nor injurious to the security of the United States? If that is your position, I respectfully disagree.”
Judge Lewis accused Snepp of “willfully, deliberately and surreptitiously breach[ing]” his contractual obligations. Judge Lewis ruled that Snepp’s motivation wasn’t about exposing “some great crime,” nor was it intended “to let the American public know all of these things;” instead, Judge Lewis ruled, Snepp “did it for money.”
According to a Washington Post article:
Throughout the 1 1/2-day-long non-jury trial, Lewis had made little effort to conceal his personal view of what Snepp, whom he generally referred to as "Snepp," had done, lecturing him angrily when he took the stand and saying at one point that "it won't make any difference" what the evidence is.
Judge Lewis ordered Snepp to pay back all revenues from his book sales past, present and future — which had already topped $60,000, a pretty sum in 1978 — to the US government. The judge further ordered Snepp to submit any future writings or speeches to Bush’s Publications Review Board.
In 1980, the Snepp ruling was upheld by the Supreme Court. A Washington Post article dated February 22, 1980, described the significance of the Court’s ruling:
In the view of many lawyers, the opinion in the Frank Snepp case gave the government broad new powers to restrict release of information not only by intelligence operatives, but also by a wide variety of government employees, including people who work at the Supreme Court.
With the Snepp case completely botched, a new legal precedent was established that made it much easier for the incoming Reagan Administration to construct the secrecy-and-censorship apparatus still operating today. Just a few months into Reagan’s first term, another ex-CIA officer-turned dissident, Ralph McGhee, watched as the CIA gratuitously censored an article he’d written for The Nation criticizing the Agency for using “forgery and deceit” to discredit popular revolts in developing nations like Indonesia and Guatemala. McGhee had signed a CIA nondisclosure contract; after the Snepp ruling, he decided he had no choice but to submit his article first to the CIA’s Publications Review Board before running it in The Nation. The CIA of course took a machete to McGhee’s article, demanding that he delete passages that were public information already published elsewhere. After it was published, McGhee sued the CIA claiming they violated his Constitutional First Amendment rights, but a federal appeals court threw out his case, ruling that state secrecy and contract law took precedence over McGhee’s crunchy First Amendment rights.
Summing up the radical legal shift and the effect of nondisclosures as Reagan took office, Angus MacKenzie observed:
The Supreme Court approved contracts of the kind that Richard Ober had used as leverage to quiet dissident CIA officers who questioned MH-CHAOS....This decision gave the CIA the authority to institutionalize its censorship program. It would provide the precedent for censorship to be extended to more than fifty other federal agencies.
The NatSec state suffered a few setbacks during Carter’s term in office in the late 1970s, but that changed as soon as the universally despised Baptist was tossed out of office, rejected by his own base (Alexander Cockburn argued in a 1980 Rolling Stone cover story that there was no discernable difference between Carter-dee and Reagan-dum). Reagan swooped into power and picked up where Richard Ober and George H. W. Bush left off. He constructed a far more effective and impregnable secrecy apparatus, which was essential for his larger goal of reconstituting the National Security state and re-establishing American global hegemony.
The job of constructing Reagan’s secrecy apparatus fell to a young right-wing zealot named Richard Willard, a Vietnam vet who had served as an intelligence officer in the Army Security Agency — the Army’s in-house National Security Agency — before heading to Harvard Law. Willard was a close friend of young Kenneth Starr, who brought Willard into Reagan’s Department of Justice as head of a newly-created office specially for him: the Office of Intelligence Policy. Willard was given a staff of 10 lawyers and the full backing and collusion of CIA director Bill Casey.
Willard’s idea of constitutional law was best summed up by his notorious quote:
“The First Amendment is not absolute.”
Willard was put in charge of an inter-agency intelligence body to coordinate a full-scale war on government leaks and openness. It’s no surprise that Willard came from an intelligence background, nor that his mentors during the time he created the secrecy apparatus came from the CIA. Theywere Bill Casey and a German-born CIA counterintelligence veteran named Ernest Mayerfeld, who had been tapped by Ford’s CIA chief George H. W. Bush to serve on the CIA’s Publications Review Board.
Willard and Mayerfeld drew up proposals for an effective secrecy apparatus that derived directly from Richard Ober’s plan to Nixon a decade earlier. These proposals were to mercilessly pursue and destroy leakers; centralize and regulate interaction between the media and government employees; expand the use of nondisclosure secrecy contracts to as many government workers as possible, not just CIA operatives; and finally, criminalize unauthorized government leaks so that leakers faced prison time. Casey told Willard he wanted a law that made unauthorized leaks a crime punishable by up to three years in prison.
The first problem Willard and his CIA mentor Ernest Mayerfeld identified was the fact that there was no across-the-board law criminalizing government leaks. They were looking for something less extreme than the Espionage Act, but significantly more than a slap on the wrist. Reagan’s people wanted the sort of law that would make it easier to charge everyone, not just the big-time leakers on the level of a Daniel Ellsberg. One of the first criminal laws they managed to pass was the 1982 Intelligence Identities Protection Act, which criminalized outing the names of covert intelligence operatives. This was the same law used to lock up CIA whistleblower John Kiriakou, and to jail “Scooter” Libby for outing Valerie Plame. Ironically, Ron Paul voted in favor of that law in 1982, while Vice President Biden, as a young senator, passionately opposed it.
Although the CIA identities law was a big step forward in that it criminalized a whole new layer of government leaks, it was still too narrow. Willard faced a larger cultural problem: America had never criminalized contacts between government officials and the media. It was an old tradition — the idea that such a thing could be a crime would strike most judges and lawmakers in the early 1980s as bizarre, if not downright sinister.
Since the Constitution prohibited the government from “owning” its employees’ work, ideas and information — unlike Britain, where the Crown theoretically owns public information — Willard had a problem coming up with a legal rationale for charging leakers with theft, which is one of the three counts Edward Snowden has been charged with.
So Willard flipped it around in order to apply a different criminal code which made it a crime for government employees to exploit government records or “things of value” for their own personal gain or profit. The framing was everything: Rather than arguing that government secrets were government property, the individual employee who passed those secrets on would be charged with essentially embezzling government “things of value” for their personal gain.
In the spring of 1982, Willard delivered to Reagan a set of recommendations to protect government secrets. His report had exactly the same title as Richard Ober’s report to Nixon a decade earlier: “The Unauthorized Disclosure of Classified Information.” The report was attached to a draft secret law, a National Security Decision Directive (NSDD), for Reagan’s signature.
And there was another big part of the problem. All the laws and instructions that a president can issue are made by decree, as by a Tsar. Everything from legalizing an agency like the NSA, to condoning assassinations of Americans overseas without due process, to allowing the CIA to spy on Muslims: Executive Orders allow the president to do whatever the fuck he wants. And then there are the White House bureaucracy “ukazi,” called National Security Decision Directives (NSDD), which MacKenzie describes as “a kind of secret law” which has “the authority to direct the actions of employees of the executive branch even when they are never made public.”
When you scratch the theatrical surface, down to the layers of executive ukazi and secret edicts that have force of law above and beyond Congress, you start to get the sense that we’ve been getting played by all the ACLUs and EFFs with their high-profile lawsuits against wiretapping programs, and all their slick PR-manufactured web page informationals riling us up. What about the constitutionality of Executive Orders and National Security Decision Directives? What’s the point of waging these endless losing court battles against this or that particular program, without going after the Mother Alien executive powers that keep pumping out egg after egg?
It’s hard not to get the feeling that we’re told many more fictions about our alleged democracy than we’d like to be aware of. It’s hard not to feel cheated by our leading civil libertarians, and to get the sense that they’re all playing a sort of kabuki theater game for public consumption, pretending that there’s more democracy than we really have, that the rules are clear and accountability is just around the corner if we can just win this one case, if we can just blast this one alien out to space, even as the Mother Alien keeps pumping out EO egg after NSDD egg... No wonder we’ve grown increasingly skilled at feckless whining and impotent sloganeering, to the same degree we’ve grown increasingly powerless to affect anything — because we’re not even told what “it” really is.
In March 1983, the ACLU’s top Washington lawyers — Morton Halperin and Mark Lynch (who led the disastrous case defending Snepp) — cut a sleazy backroom deal with their CIA counterpart, Ernest Mayerfield, to gut liberal FOIA laws passed in the 1970s and offer the CIA broad exemptions to protect their secrets. The unholy alliance between the ACLU’s Washington office and the CIA in building today’s secrecy-and-censorship apparatus is one of the darker chapters of the Reagan era, one that hurts to even contemplate. It wasn’t just that the top ACLU lawyers cooperated and compromised with Bill Casey’s CIA, it was that they colluded together against the wishes of the rest of the ACLU, that they seemed to actually love each other.
Here’s ACLU’s Lynch gettin’ all blue-collar sentimental about his buddy flick relationship with his counterpart in the CIA, Ernest Mayerfeld — speaking in a bizarre beer-guzzlin’ populist vernacular about how they bonded on a personal level while carving up the rest of the nation’s rights to government secrets:
“We’re two guys who’ve spent a lot of time in court together shooting the shit, and I’ve always told him if they get off the total exemption thing we might be able to work something out.”
That quote comes from an old Nation article.
In case you think Lynch was caught in an awkward moment, nearly a decade later, in the early 1990s, Lynch’s fond memories for his CIA counterintelligence pal hadn’t faded. As he told Angus MacKenzie:
“In my dealings with [Mayerfeld], he was always very trustworthy. He was the kind of guy I thought you could negotiate with in good faith.”
The CIA had been angling to get its records completely exempted from FOIA requests. The Agency also wanted a law retroactively nullifying all of the lawsuits filed by citizens who were victims of illegal CIA spy programs. The ACLU’s Lynch went behind closed doors with his CIA pal and cut them a deal offering a nice big exemption from FOIA requests on any CIA documents labeled “operational files.” With that exemption legalized, the CIA could plausibly label anything they’re involved in, legal or illegal, under the “operational files” exemption, and -- poof! – they’d be hidden from public view, exempt from FOIA requests. And not a moment too soon, as the Reagan Administration was already up to its elbows in the same old savagery that the Empire loved best: genocide in Central America, brand-new domestic spying programs against Reagan’s political critics, the illegal Iran-Contra program, allegations of complicity in drug-running, death squads...
The ACLU-CIA bill restricting FOIA transparency passed by a huge margin. What were liberal Democrats to do, oppose a bill that the ACLU itself had come out in favor of? Who argues against the ACLU? Liberals were already bewildered by the speed of Reagan’s counterrevolution, and their own ideological rot —the ACLU-CIA partnership sounded like a fucking nightmare, a panic attack episode of the kind that hits when you’ve eaten the wrong pot brownie.
It was announced in the New York Times in May 1984, in a small item tucked away on page 35, with the impossible headline:
C.I.A. AND A.C.L.U. SUPPORT CURB ON INFORMATION
WASHINGTON, May 10— The Central Intelligence Agency and the American Civil Liberties Union joined today in endorsing a House bill that would exempt most of the agency's operational files from requests for material under the Freedom of Information Act.
At a hearing before a House subcommittee, the civil liberties group testified that the bill would give the public greater access to information by helping the C.I.A. reduce its two-to-three-year backlog of requests under the act.
Mark Lynch, an A.C.L.U. lawyer, said current law allows the agency to keep secret all but the most innocuous portions of files on intelligence.
“We believe that this bill will not enable the C.I.A. to withhold any meaningful information which the agency is now required to release,” he said.
That contention was disputed by two freelance writers, Angus Mackenzie and Ralph W. McGhee, a former C.I.A. agent, who said they had found heavily edited operational files released under the act useful in their research.
The bill would allow the Director of Central Intelligence, to designate certain files as “exempt from search, review, publication or disclosure” under the Freedom of Information Act.
Bummer. And we’re still living with the consequences. Recently, this very same ACLU-approved FOIA exemption allowed the Obama Administration to hide files on the Navy SEALs’ raid on bin Laden’s hideout that led to his death; thanks to the ACLU-backed law, those files could be legally hidden from FOIA requests. The Pentagon moved the files to the CIA, which marked the files “operational” and therefore exempt from FOIA requests. While the story sparked the usual Twitter tantrums about evil Obama, no one bothered asking where or when this FOIA exemption for CIA operational files first appeared.
That same spring of 1983, as the ACLU and their CIA counterpart agreed on draft legislation to roll back FOIA laws, Kenneth Starr’s college buddy Richard Willard of the Justice Dept. called a press conference to unveil his baby: National Security Directive Decision 84, or NSDD-84 — behold, the American secrecy apparatus of the future!
Section One, Point One of NSDD-84 (pay attention, Mr. Assange) begins, and I quote:
“All persons with access to classified information shall be required to sign a nondisclosure agreement as a condition of access.”
Nondisclosures were the very first point in the NSDD establishing today’s secrecy apparatus.
In practice, this meant more than four million government employees would now be required to sign nondisclosures — lifetime secrecy contracts — gagging them forever.
“All such agreements must include a provision for prepublication review to assure deletion of...classified information” — in other words, a lifetime commitment to a censorship board of the sort George H W Bush set up as CIA director under Ford — and, “All agreements...must be in a form determined by the Department of Justice to be enforceable in a civil action by the United States.”
Section two of NSDD-84 spelled out the various ways leakers would be pursued and destroyed, involving FBI investigations, the requirement that all agencies cooperate in all leak investigations, and punishment, including loss of job and other penalties, and lie detector tests as a way to intimidate suspected leakers.
Naturally, the press ignored the really serious stuff — the bureaucratic foundations of a new and unprecedented secrecy apparatus — and instead focused on a provision requiring everyone to submit to lie-detector tests. That was the sort of dystopian tech prop that any idiot, even the DC press corps, could get their heads around as something identifiably evil. Beyond lie-detector tests, however, the response was a collective shrug.
It took a while for the NSDD-84’s significance to be fully grasped. As the months went on, the grumblings started to grow. A year later, in 1984, one outraged Congressman, Democrat Don Edwards, a former FBI agent from my hometown San Jose, called for hearings on the subcommittee he chaired. Rep. Edwards was particularly alarmed over the portion of the new law that made leaking information to reporters into a crime punishable by up to three years in prison.
Edwards’ hearings featured a parade of outraged civil liberties activists denouncing the new law criminalizing unauthorized disclosures of “classifiable” information. Edwards pointed out that under Nixon, even White House menus were classified, meaning “you can [now] go to jail for three years for telling someone what you had for breakfast at the White House.”
Amid all the anger and outrage, the ACLU’s Mark Lynch appeared speaking for the most venerated and powerful civil liberties organization in the land:
“I would like to express my very firm conviction that, to the extent the Agency has performed well with respect to prepublication review, it is because people in key positions out there are at the moment acutely sensitive to the power that they have been given to exercise by the Snepp Supreme Court decision.”
Lynch’s Soviet-like praise for Tovarisch Mayerfield was not lost on the already-wobbly Democrats. It sent a clear message to liberals and civil liberties activists: The ACLU’s Washington office had accepted government censorship and secrecy as a fact of life. They were playing ball — so why aren’t you?
News that over four million government employees would now be obligated to sign nondisclosure contracts outraged members of Congress in both parties. They passed a bill banning only the exact nondisclosure form being proposed, but leaving open a giant loophole for Reagan to force the same four million workers to sign an identical nondisclosure whose only real difference was the name: Standard Form 189. Federal employees complained, but as one worker told a reporter, “I have a mortgage, I have children...”
Meanwhile, the ACLU played the same collaborator role it inexplicably adopted throughout the Reagan years—opening the outfit up to harsh criticism in The Nation, New York Times and elsewhere, and sparking internal revolts from more principled ACLU chapters around the country, particularly in Northern and Southern California.
But the real war was in Washington, where the ACLU had decided against mobilizing its elite, effective, fired-up legions of grassroots civil liberties activists, 250,000 strong at the time. Rather than risk a public fight to protect the gains made in the 1970s, the ACLU’s Washington branch cut deals behind closed doors, urging those who resisted to do the same. This was particularly frequent when complaints from federal workers started to pour in over a new nondisclosure contract that hundreds of thousands were being asked to sign for the first time. The first standardized nondisclosure pushed on government workers was Standard Form 189 — workers didn’t like signing it, but they knew if they didn’t, they’d either lose their jobs or face serious demotions.
This wasn’t always the ACLU’s position on nondisclosures. In fact, just a few years earlier, during the Carter years, the same ACLU attorney Mark Lynch took the opposite position, arguing that “secrecy agreements...impose an unwarranted and impermissible burden on the First Amendment rights of CIA employees.”
Cut to the early 1980s when the mood was less forgiving, and now, according to MacKenzie, the ACLU was telling federal workers essentially “deal with it:”
Federal employees who complained to the ACLU about the new restrictions were told of the Snepp decision and advised there was little alternative but to go along with it. When an employee of the U.S. Department of Agriculture appealed to the ACLU, he was told the situation was hopeless in the face of Snepp. No court fight against Standard Form 189 could be won, and therefore it was pointless to try.
[Reagan’s secrecy point-man] Willard was well aware of the ACLU’s conciliatory attitude on Standard Form 189. “Yes, the ACLU reviewed it...the ACLU didn’t scream about that one,” he said afterward.
Around the same time that the ACLU’s Lynch fucked up the Snepp case, another former CIA employee, retired Mideast expert Wilbur Eveland, had a book coming out through Norton about his adventures with Allen Dulles’ CIA serving in the Middle East in the 1950s and early ’60s, in perennial hotspots including Iraq, Syria and Lebanon — countries whose relevance was even greater in 1980, when Eveland first tried publishing his book. Unlike the other ex-CIA authors, Eveland wasn’t bound by a nondisclosure contract for the simple reason that he’d never signed one. So Eveland didn’t see how the new secrecy and censorship laws applied to him. Unfortunately, he’d misjudged.
Just as Eveland’s memoir “Ropes of Sand: America’s Failure in the Middle East” was going to print in 1980, the Supreme Court ruled on the Snepp case. Deciding he’d better play it safe rather become another Snepp and see all of his earnings stripped, Eveland sent a courtesy letter to Carter’s CIA director, Stansfield Turner, informing him that he had a book coming out soon. Turner handed the case over to a CIA attorney, and a couple of weeks later, Eveland received a call from a CIA lawyer informing him that the CIA intended to sue him. Eveland further learned that even though he hadn’t signed a nondisclosure, he was still was bound by the same contractual agreement that the others had signed, whether or not he or the Agency could produce a copy of the contract or not. And then the strangest thing happened: After finishing with his threats, the CIA lawyer advised Eveland that if he wanted to avoid a costly lawsuit, he should retain the services of a Washington-based ACLU lawyer named Mark Lynch. The CIA’s general counsel went further, telling Eveland that he wouldn’t so much as meet with him unless he was accompanied by the ACLU’s Lynch.
So Eveland got in touch with the ACLU and arranged to have Mark Lynch represent his case — which Eveland later complained meant getting nonstop pressure from the ACLU’s lawyer to cooperate with the CIA’s demands as conveyed to Lynch from his spy agency counterpart, Ernest Mayerfeld.
But Eveland wasn’t easily bullied. A minor celebrity himself in the spy world, Eveland took offense at the CIA’s hard-assed negotiation stance, their “our way or the highway” ultimatums — so Eveland chose the highway, giving Norton the green light to print his book, come what may. The retired spy figured he was still protected by the fact that the CIA still hadn’t produced a nondisclosure, even though they threatened to.
With the book now rolling off the presses, Mark Lynch’s CIA buddy Ernest Mayerfield made Eveland one final offer — or they were going to war in the courts: Eveland could sign a brand-new nondisclosure contract binding him to secrecy for the rest of his natural retired life, under which he would agree to submit all future writings and speeches to the review board in future. And one more thing — Mayerfield was told he’d have to Snepp himself voluntarily and agree to turn over all profits earned from his memoir “Ropes of Sand” to the federal government. Agree to those conditions, and the CIA would agree to drop their lawsuit threats.
By this time, Eveland had been diagnosed with inoperable prostate cancer. He was not financially well off either. So he listened to his ACLU attorney Mark Lynch, and against his own judgment, agreed to the CIA’s harsh terms, signing his name on their nondisclosure contract at the end of 1982.
As soon as he caved, Eveland regretted it. He understood that, among other things, he’d just signed away his First Amendment rights. It was like signing away his humanity. In an interview, Eveland was bitter, telling Angus MacKenzie:
“Mark [Lynch of the ACLU] worked it out with Ernie [Mayerfeld of the CIA]. I can’t help but feel there has been an informal cooperative arrangement. On real gut issues....the ACLU goes along with the Agency. Mark and Ernie — it’s a nice tame arrangement.”
The following year, in 1983, Eveland learned of Reagan’s decision to base hundreds of US Marines in Beirut, a country and a danger Eveland knew intimately. At that point he started speaking out. He decided he didn’t have anything to lose anyway. Old and dying and penniless, living in a rented room in a friend’s house, Eveland started getting threatening letters from CIA censors telling him he was contractually bound to first run any public statements on Lebanon past the CIA’s review board. Later that year in 1983, a Lebanese suicide bomber killed 241 US servicemen, the worst single-day death toll for the Marines since the Battle of Iwo Jima.
The fallout might’ve been worse for Reagan, had not the secrecy agreements been in place and in force, severely limiting criticism from people in the know. Now, thanks to nondisclosures, they were safely muzzled.
By Reagan’s second term, over a million federal employees had been coerced into signing Willard’s nondisclosure contract, Standard Form 189. The timing was perfect: The Reagan Administration was up to its eyeballs in so many illegal and appalling programs — domestic spying and harassment of church activists, trading arms to the Ayatollah and using the proceeds to illegally fund the Contra death squads, rampant corruption in the Pentagon on a scale never before seen in this country....those are the sorts of things nondisclosures are effective at hiding from the public.
All was going well from a corruption-and-illegal secret operations point of view until a Pentagon whistleblower named Ernest Fitzgerald refused to sign the nondisclosure in 1987, and refused to allow his career to suffer for it.
This wasn’t Ernest Fitzgerald’s first time taking on the powerful Washington DC defense and secrecy apparatus: In the late 1960s, Fitzgerald was working as a Pentagon procurement controller when he noticed that Lockheed’s latest boondoggle — the gargantuan C-5A transport plane — was running more than 100% over budget. Fitzgerald got himself in trouble with his superiors for speaking candidly about the C-5A’s runaway costs, and the need to impose some controls. A few years after Fitzgerald first started blowing the whistle, the C-5A boondoggle made national headlines as an example of what was wrong with Pentagon procurement programs. Fitzgerald was called before a Senate committee hearing to testify alongside the assistant secretary for the Air Force, whose rosy testimony was torn apart by the articulate, unpretentious Fitzgerald. Before the hearing ended, some powerful Senators on the committee hailed Fitzgerald as a true American hero. But his Pentagon bosses thought otherwise, and put him out to pasture, all but ruining him. So Fitzgerald sued the Pentagon for wrongful termination, won, and got his job back in 1973. He pursued his case to recover back-pay and damages, and separately filed a lawsuit against former President Nixon after learning through the Watergate hearings that Nixon had slandered him on the White House tapes. Fitzgerald’s case against Nixon was a first of its kind — can a citizen sue a president, is a president sovereign and immune? The outcome of Fitzgerald’s case would set a legal precedent over whether presidents enjoyed absolute immunity from lawsuit damages or not.
Fitzgerald’s suit against Nixon worked its way all the way up to the Supreme Court in 1981, when guess-who showed up to sabotage it: Our old friends from the ACLU, Mark Lynch and Morton Halperin. The problem was ACLU celebrity lawyer Halperin was in the middle of pursuing his own similar lawsuit against Nixon at the very same time, and he wanted his case, not Fitzgerald’s, to be the one that set precedent about presidents and immunity. Early in Nixon’s first term, Morton Halperin had served in Kissinger’s National Security Council (the two knew each other from Harvard), but Halperin was rudely forced out of office after having been wrongly suspected of leaking classified NSC information to the press.
Halperin’s phones were tapped, his movements tracked for two years, the whole thing was illegal and abusive. So Halperin sued Nixon, and in the late 1970s, he won a symbolic judgment. With that symbolic victory, Halperin took Nixon to court for real, going for both a precedent and a major payout. Halperin’s biggest obstacle was the possibility that the courts might rule first on Fitzgerald’s lawsuit, a ruling that might nullify Halperin’s case should Fitzgerald lose his case against Nixon. Fitzgerald’s case had advanced further up the courts than Halperin’s. So Halperin and his ACLU colleague and attorney on the case, Mark Lynch, decided to do what any civil liberties serving the greater good would do — they filed briefs intended to sabotage Pentagon whistleblower Ernest Fitzgerald’s lawsuit against Nixon before a ruling could be made. They also went to the press, leaking confidential information about a murky, private settlement deal that Fitzgerald’s lawyers may have agreed to with Nixon’s. When that failed to derail Fitzgerald’s lawsuit, Lynch filed motions and statements to the Supreme Court that not only threatened to sabotage Fitzgerald’s case, but also established some bad precedents that threatened the liberties and rights of millions of government workers.
ACLU honcho Mark Lynch told the court that “civil service employees such as Fitzgerald, who are fired in alleged retaliation for the exercise of their First Amendment rights, have no cause of action under the First Amendment in view of the special relationship between the federal government and its employees.” In a separate motion filed on behalf of Halperin, Lynch repeated the ACLU leader’s position that “the speech for which Fitzgerald was allegedly fired is not protected by the First Amendment.”
Lynch was saying that the ACLU’s position was that the government could treat its workers pretty much however the Hell they wanted to, that government workers could even be fired in retaliation for exercising their First Amendment rights. In other words, government whistleblowers had no First Amendment protections, according to the ACLU’s filings.
As disgusting as that was, it didn’t matter in the end. Fitzgerald got the last laugh, as it were, as the court ruled against his lawsuit and in favor of granting Nixon absolute immunity.
Bringing the story forward to 1987, when well over a million government workers had already been pressured into signing the nondisclosure... now it was Fitzgerald’s turn. One day, he was approached by a Pentagon officer who handed him a copy of the standard nondisclosure contract to sign; if he didn’t, he’d lose his security clearance, and his career would suffer enormous damage.
As a Pentagon controller, this presented Fitzgerald with an intractable problem. If he signed the secrecy contract, he would be prohibited from blowing the whistle on Pentagon waste and fraud at the peak of the Reagan-era defense industry free-for-all plunder. One clause in Standard Form 189 really bothered Fitzgerald:
“I understand that all information to which I may obtain access by signing this agreement is now and will forever remain the property of the United States Government.”
The wording contradicted both US copyright code and the essence of a republican form of government.
Fitzgerald refused to sign it. But he was also cornered: He had no illusions that the ACLU would protect his constitutional right to refuse to sign away his First Amendment rights. So Fitzgerald sought help from friendly Congressional aides whom he knew as opponents of Pentagon waste and fraud. Eventually, Democratic Rep. Gerry Sikorski of Minnesota took up Fitzgerald’s cause. As Sikorski saw it, the nondisclosure contract he was asked to sign posed a direct threat to potential whistleblowers and to the idea of government accountability.
The pushback was intense: a top Pentagon general notified Fitzgerald that he had 30 days to sign the nondisclosure agreement, or else he’d have his security clearance revoked. That was followed up shortly afterwards by a policy statement from ACLU lawyer Allan Adler, whose policy memo MacKenzie quotes:
“the ACLU finds no inherent constitutional barrier” to an agreement that “imposes an obligation not to disclose...information without authorization.”
Putting it more plainly, MacKenzie wrote that the ACLU’s Adler “seemed to undermine Fitzgerald’s lobbying effort on Capitol Hill.”
This being 1987, Fitzgerald faced a less frightened Congress than the earlier Reagan years. By 1987, the Iran-Contra scandal had broken, and Gorbachev was quickly de-fanging the “evil empire.” The Reagan chill was thawing fast. Fitzgerald’s cause was quickly taken up by members from both parties — Sen. Grassley, Jack Brooke, even the doughy Les Aspin. One obvious problem in the standard nondisclosure contract under Reagan was that it didn’t even have a provision protecting or excepting whistleblowers. That made it easy for a bipartisan coalition to rally behind a safe figure like Fitzgerald, and demand not an end to nondisclosures, but rather, improved nondisclosures.
The end result was that Fitzgerald was allowed to keep his job, Standard Form 189 was scrapped, and in 1988 a new nondisclosure contract was drawn up: Standard Form 312, which is still operational today.
On the plus side, SF 312 has a whistleblower clause; on the negative side, it includes page after page of restrictions and threats of penalties carrying prison terms of up to ten years for unauthorized disclosures.
And that, to make a short story long, is why Assange is a shit for compelling his colleagues to sign punitive secrecy contracts. Not because they’re hypocritical, but because they are the modern national security state’s weapon of choice against the public, the key to keeping everyone in the dark, powerless, fearful, depoliticized, afraid to stand up for themselves.
It’s kind of shocking to go back and read what liberal Democrats were like in the early Reagan years — maybe not heroes, but definitely not the soulless, de-politicized rollovers they are today either.
It’s also kind of surprising to learn how much Obama really is emulating Reagan, just as he promised from the start. If you’re an Obama fan, your American amnesia will serve you well in this instance, because nothing is more depressing than reading any episode, any given week, of what really went on during the first two-thirds of the Reagan years. But whereas Reagan was a senile figurehead half-aware as he crunched his way through the boneyard, leaving the dirty work to guys like Casey, Mayerfeld and Willard, Obama is all of them.
His Insider Threat Program has all the intimidating features of Reagan’s and Nixon’s secrecy apparatus structure. It has the broadest definition possible of what constitutes “classified information,” which now includes any information, period. It has taken the war on leakers to every federal agency, no matter how far from the action. There is zero tolerance for the merest suspicion of a leak and merciless pursuit of any and all leakers to the maximum extent possible. It even requires that potential leakers turn themselves in. Just as Nixon relied on CIA spook Richard Ober to design a secrecy apparatus, and as Reagan tapped CIA and Army intelligence goons to construct the foundations of that apparatus we have today, so Obama is also reaching into the intelligence world’s paranoid, anti-democratic, anti-life system of control to keep the lid on, as McClatchy reported:
Obama’s executive order formalizes broad practices that the intelligence agencies have followed for years to detect security threats and extends them to agencies that aren’t involved in national security policy but can access classified networks. Across the government, new policies are being developed.
And then there’s Obama’s own personal stamp on the secrecy apparatus: new rules ordering and encouraging government employees to spy on each other, and to turn each other in should they detect suspicious behavior, signs that say, “This one’s about to blow!” How can you sniff a potential leaker? Hard to say these days. During Nixon’s time, it was a lot easier: Just look for the Jew in the room. That’s what got Morton Halperin run out of halls of NatSec state power. To quote the Nixon tapes,
“The Jews are born spies. You notice how many of them are just in it up to their necks? ... I just wanna cool it with those damn people because of their disloyalty to the country.”