How the CIA Got Away With Domestic Spying
The San Francisco Chronicle
October 12, 1997
Court rulings backing the agency set the stage for censorship, writes reporter
REVIEWED BY DANIEL L. WICK
University of California Press; 241 pages; $27.50
The late Angus Mackenzie, a longtime affiliate of San Francisco's Center for Investigative Journalism (he died of brain cancer in 1994), spent more than 15 years researching "Secrets: The CIA's War at Home.'' It represents the best account yet of the CIA's continuing attempts to manipulate and suppress informatio´n on the basis of its own narrow definitions of national security.
Forbidden by the National Security Act of 1947 from operating within the United States, the CIA nevertheless launched a domestic spying program dubbed MHCHAOS aimed at the U.S. anti- war underground press of the 1960s and 1970s. The operation was international in scope and supposedly focused on whether anti-war publications were financed by foreign, communist sources. In fact, points out Mackenzie, MHCHAOS, like the FBI's COINTELPRO, was designed to gather information on American citizens deemed by these federal agencies to be potentially subversive.
Because MHCHAOS was patently illegal, CIA officers participating in it were required to sign secrecy agreements swearing never to divulge any information about the operation. To violate a secrecy agreement was to risk federal prosecution. Mackenzie argues that such secrecy contracts became a favorite government tool, used to muzzle disclosures by ex-Agency personnel about questionable or illegal CIA activities.
One of the several secrecy agreements that the Agency eventually required its personnel to sign stipulated that any articles, books or speeches they might write that deal with intelligence activities must be preapproved by the CIA. When challenged in court that this type of contract constituted censorship and violates First Amendment rights to freedom of speech and press, the CIA, says Mackenzie, argued that this was not a censorship issue: "The United States was seeking neither to stop publication nor to censor. Rather, the United States was seeking 'specific performance' of a contract. This rather clever attempt to sidestep the obvious conflict between censorship and the First Amendment was persuasive to the judge.''
Another key ruling favoring the government arose out of the publication in 1977 of former CIA officer Frank Snepp's "Decent Interval," criticizing Agency activities relating to the American withdrawal from Vietnam. Snepp refused to submit the manuscript to the CIA censors prior to publication. The Agency took Snepp to court and obtained a ruling requiring Snepp to pay all profits from the book to the government and submit future writings on intelligence for CIA prepublication review. Says Mackenzie: "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 chief remaining barrier to keeping details of CIA domestic espionage from the public was the Freedom of Information Act (FOIA). So, in 1982, the Agency moved to create an exemption from the FOIA for counter-intelligence files, such as the records of MHCHAOS. Mackenzie details how this was accomplished with the surprising cooperation of American Civil Liberties Union executives Mark Lynch and Morton Halperin. The new FOIA exemption coincided with the issuance by the Rion Directive (NSDD 84), which was designed to prohibit federal employees from leaking classified information to the press. Mackenzie maintains that the chief result of NSDD 84 has been to discourage potential government whistle blowers.
In the end, Mackenzie suggests, the pattern of censorship that began with the CIA frantically trying to keep secret its illegal domestic spying operations has spread to agencies of the federal government, creating a culture of bureaucratic secrecy that resembles the one generated by Great Britain's Official Secrets Act, but previously unknown in the United States, with its strong tradition of constitutionally protected free speech.
In Mackenzie, the United States lost prematurely one of its fiercest First Amendment defenders: "Almost a decade after the end of the Cold War,'' he writes in his conclusion, "espionage is not the issue, if it ever really was. The issue is freedom .... The issue is principle .... Until the citizens of this land aggressively defend their First Amendment rights of free speech, there is little hope that the march to censorship will be reversed. The survival of that cornerstone of the Bill of Rights is at stake.''