02 May 2008

Our Propagandists (3) ~ and the Law in the U.S.?

"The Secretary is authorized, when he finds it appropriate, to provide for the preparation, and dissemination abroad, of information about the United States, its people, and its policies, through press, publications, radio, motion pictures, and other information media, and through information centers and instructors abroad. Subject to subsection (b) of this section, any such information ... shall not be disseminated within the United States, its territories, or possessions ..." ~ US Code, Chapter 18(V), Title 22, 1461.
I am not a lawyer, so comments on this post from anyone who actually knows something in this area are welcome. I was listening to Diane Rehm this morning and a caller asked she and her panelists (Jerry Seib, The Wall Street Journal, David Gregory, NBC News, & Jill Zuckman, Chicago Tribune) what I think are useful questions. The caller wanted to know why the media has not followed up on the recent revelations of a Pentagon program to brief network news "analysts." [1] [2].* He also wanted to know who might be prosecuted for this illegal activity. Rehm nearly fell out of her chair to assure the caller that she had addressed the matter last week while also denying the Pentagon program might conceivably be illegal. Her panelists were singing like a chorus in agreement (Seib, in particular was predictably dismissive. Unlike Rehm who at least thinks the propaganda program is morally suspect, he sees it as wholly acceptable.)

So I typed "propaganda law United States" into Google and found this passage in an entry at the National Security Archive web page:
"The Smith-Mundt Act of 1948, amended in 1972 and 1998, prohibits the U.S. government from propagandizing the American public with information and psychological operations directed at foreign audiences;and several presidential directives, including Reagan's NSD-77 in 1983, Clinton's PDD-68 in 1999, and Bush's NSPD-16 in July 2002 (the latter two still classified), have set up specific structures to carry out public diplomacy and information operations."
So, I then Googled "Smith-Mundt Act" and found a link to this page at Legal Information Institute at Cornell Law School, There I found the passage at the top fo the post. It is part of the authorization of the United States propaganda apparatus (Radio Free Europe, Radio Liberty, etc.) under the auspices of the Department of State. Specifically the legislation established the United States Information Agency "to disseminate abroad information about the United States, its people, and policies promulgated by the Congress, the President, the Secretary of State and other responsible officials of Government having to do with matters affecting foreign affairs" (Chapter 18(I), sec. 1431).

Diane Rehm and the Pips seem awfully confident that the Pentagon program does not fall afoul of this legislative ban on domestic propaganda. Others - invoking Government Accountability Office regulations - disagree pretty strenuously. Of course, none of what I tracked down addresses the various presidential directives mentioned in the NSA link. But Rehm et. al. offer no evidence of knowing what those directives contain either.

So, what are the legal issues here?
* In fairness, npr ran this story on the affair yesterday, see also this column by Eric Alterman.

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Anonymous AK said...

This 2006 piece from the Columbia Journalism Review talks about these issues, and the problems with the Smith-Mundt Act in an age of instant international communication:


...that said, I'm still confused on exactly what legal lines have been crossed.

02 May, 2008 16:56  
Blogger Jim Johnson said...


Thanks for the link. The CJR essay is useful in identifying what the lines ought to be and why they seem hard to identify given technological changes. It also makes clear the negative consequences of propaganda campaigns - in terms of damaged credibility of official pronouncements.

All that said, I suspect it would not be hard to establish that providing with ex-military types with talking points that they then parroted for primarily domestic consumption crosses the legal line.

If The Times reports are correct (and they are based on Pentagon documents), it is clear that Defense Dept. had a program of propaganda aimed at domestic audiences. If I understand the law, that is not allowed.

02 May, 2008 17:54  
Anonymous Matt Armstrong (aka MountainRunner) said...

The purpose and intent of Smith-Mundt are very different than today's uneven implementation. The reality is Smith-Mundt does not cover DOD. It does not cover any part of the U.S. Government except some elements of the State Department, and only then because USIA was dissolved. But if you go back to the purpose and intent of Smith-Mundt, you'll find the use of the generals to be intermediaries was intended (even if, again, DOD was not covered).

You may find the following interesting on the subject of Smith-Mundt at my blog:
on Smith-Mundt and the hidden hand
Talking about the principles of Smith-Mundt
and an event to discuss the Act
and Talking to our adversaries

It is ironic that a law designed to counter a global misinformation campaign against the U.S. is itself so misunderstood today.

As another commenter pointed out, the global media environment doesn't allow for bifurcation of audiences based on geography. In fact, it's arguable that the supporters of Smith-Mundt wanted the Act to go away when the U.S. media became global.

More importantly, though, is understanding the real reason for the anti-dissemination clause (preventing "propaganda" from being shared within the U.S.). Its purpose was a no-compete clause against U.S. news services.

I hope this furthers the conversation. Because no matter where you stand, Smith-Mundt doesn't work.

03 May, 2008 08:20  

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