April 10, 1973
Page 11592
GOVERNMENT SECRECY
Mr. MUSKIE. Mr. President, this morning the Judiciary Subcommittee on Separation of Powers and the Government Operations Subcommittee on Intergovernmental Relations began joint hearings with the Judiciary Subcommittee on Administrative Practice and Procedure into Executive privilege and Government secrecy.
The extensive and important testimony of Attorney General Kleindienst dealt entirely with the subject of Executive privilege, but he has agreed to return at a mutually convenient time to testify on freedom of information and Government secrecy.
These are important subjects of our inquiry and subjects for which the Attorney General bears special responsibility. An editorial in the New York Times this morning states that the Justice Department's proposals for new security offenses in the Federal Criminal Code represent "a nightmare threat to freedom of the press, to the people's right to know, and to the very concept of government with the consent of the governed."
We will be asking questions about that "nightmare threat," one on which I have already spoken at some length. As a prelude to that questioning, I believe Members of the Senate can profit from study of the opinions in the Times editorial, and I ask unanimous consent that the editorial be printed in the RECORD.
There being no objection, the editorial was ordered to be printed in the RECORD, as follows:
THE UNITED STATES VERSUS THE PEOPLE
The Nixon Administration has submitted to Congress the equivalent of an Official Secrets Act that could bring down an impenetrable curtain over virtually all governmental activities related to defense and foreign affairs. The proposed legislation would give to the executive branch and its huge army of officials iron-clad protection from public scrutiny.
The proposal is a nightmare threat to freedom of the press, to the people's right to know and to the very concept of government with the consent of the governed. It is all the more insidious because its provisions are buried in 336 pages of a Justice Department bill for revision of the Federal criminal code, a complicated and in the main highly technical and legalistic document.
There is nothing complicated or legalistic, however, about the intent and the consequences of the code's section dealing with governmental secrecy. It would make it a felony, punishable by a fine up to $50,000 and seven years' imprisonment, to disclose or communicate any governmental information concerning, among other things, "the conduct of foreign relations affecting the national defense." Penalties would also be applicable to Government employees, reporters and officials of newspapers and broadcasting companies who, if in possession of any such information, did not return it to the Government.
A further gag rule, applicable to present and former Government employees, would cover all classified documents, no matter how improperly they might be labeled, thereby seeking to give to some 20,000 functionaries the absolute power of censorship. It is censorship of a severity that has never in the nation's history been deemed wise or essential even in time of war.
The proposed new powers would give to the Government virtually unlimited license to shape foreign and defense policies in insulation from either Congress or the people. The effect could be to make all fiscal arrangements of the military industrial complex immune to public scrutiny. The proposal would render investigative reporting all but impossible, while making a criminal of the conscientious public servant who refused to conceal deceptive or wasteful practice as in the recent Fitzgerald and Rule cases.
All this is censorship of a severity that has never in the nation's history been deemed wise, even in time of war. During World War I, Congress considered legislation which would have applied the Espionage Act to the press. At least twice more in the last twenty years Congress considered similar proposals. None of these bills, not one of which intruded in so sweeping a manner on First Amendment freedoms, was adopted. The United States did not need any such legislation in the past; it does not need it now.
These proposals represent not so much a revision of the criminal code as an effort to rewrite the First Amendment and subject the American people to a kind of guaranteed ignorance about the inner workings of their Government. Such censorship would, as Senator Edmund S. Muskie has warned, result in "the silence of democracy's graveyard."
Instead of protecting the nation's security, it would surely destroy access to information on which rest the foundations of popular government.