Access to information sheds needed light on government secrets

By Sandy Davidson
School of Journalism
University of Missouri

Sunshine Week this year is March 11-17. The “sunshine” refers to access to government information. Journalists value access, but it’s a right that belongs to everyone — the right to know what your government is doing, or maybe failing to do.

A clear indicator of whether a government is more totalitarian or more democratic is the amount of access to information on how the government is functioning. Secrecy helps dreadful schemes go from dreadful dreams in perverted minds to perverted reality.

Granted, sometimes knowing about vicious plots in the making is not going to stop the onslaught of tragedy or brutality. Knowing about less pernicious plots may not avoid future silliness. But not knowing about the plotting leaves a vulnerability that knowledge can sometimes repair.

The United States is not immune to mad endeavors conducted in secrecy, and the U.S. Supreme Court is not always a friend to sunshine. An example of the Supreme Court’s complicity in secrecy is the case of the Central Intelligence Agency (CIA) v. Sims, decided in 1985.

The case unleashed an ongoing saga for some U.S. military veterans, but first some details are important to set the stage for what, in many respects, was a stupid tragedy.

CIA v. Sims has a plot similar to the movie “The Manchurian Candidate.” The original movie, released in 1962 and starring Frank Sinatra, Angela Lansbury and Laurence Harvey, is about a Communist plot to employ mind-control over a poor soldier captured by the Soviets during the Korean War and taken to Manchuria.

After brainwashing, the soldier, when he sees a queen of diamonds playing card, turns into a virtual automaton and does whatever he is commanded to do. Spoiler alert: After the war is over, he returns to the United States, where he murders even the woman he loves, but he does not murder a presidential candidate he was ordered to assassinate.

The former prisoner’s wicked mother (Lansbury) is somehow involved with these brainwashing Communists to plot her son’s mind-controlled assassination of the candidate. It doesn’t quite make sense, but it’s Hollywood.

The remake, from 2004, stars Denzel Washington, Meryl Streep and Liev Schreiber. In this version of “The Manchurian Candidate,” it’s no longer Communists who are the bad guys, and mind control is achieved through nanotechnology.

Hollywood can be forgiven for its far-fetched plots. From “Dracula” to “Aliens” to “Honey, I Shrunk the Kids,” flights of fantasy become entertainment. But when the U.S. government sponsors flights of fantasy, the result can be deadly.

The CIA is the heavy in the unfortunately real-life adventure of twisted individuals armed with governmental power — and secrecy. The CIA program in question is called MKULTRA (pronounced “MK-ULTRA”).

In CIA v. Sims, the Supreme Court described the CIA’s broad MKULTRA program as follows: “Between 1953 and 1966, the Central Intelligence Agency financed a wide-ranging project, code-named MKULTRA, concerned with ‘the research and development of chemical, biological, and radiological materials capable of employment in clandestine operations to control human behavior.’ The program consisted of some 149 subprojects that the agency contracted out to various universities, research foundations and similar institutions. At least 80 institutions and 185 private researchers participated.”

The Supreme Court explained that “MKULTRA was established to counter perceived Soviet and Chinese advances in brainwashing and interrogation techniques. Over the years the program included various medical and psychological experiments, some of which led to untoward results.”

As for those “untoward results,” the Court said: “Several MKULTRA subprojects involved experiments where researchers surreptitiously administered dangerous drugs, such as LSD, to unwitting human subjects. At least two persons died as a result of MKULTRA experiments, and others may have suffered impaired health because of the testing.”

The Supreme Court unanimously ruled against ordering the CIA to release information identifying researchers and their institutions in its program to attorney John C. Sims and a doctor who were both working for Public Citizen, a Ralph Nader group. The Court upheld the CIA’s refusal to disclose names of MKULTRA institutions and researchers, invoking the “national security” exemption for “intelligence sources.”

Thus, CIA v. Sims demonstrates the power of “national security” as an exemption to the federal Freedom of Information Act.

Years later, a group of veterans sued the CIA in federal court for information about alleged experiments on veterans. They feared that they were some of the persons described by the Supreme Court as “unwitting human subjects.” Perhaps “unwitting guinea pigs” would be an apt translation of the subjects’ statuses.

In July 2015, in Vietnam Veterans of America v. CIA, the Ninth Circuit upheld a win by the veterans. Veterans sued the CIA in California to receive information about their health and to receive health care.

Granted, some secrecy in government is necessary. As Justice Robert H. Jackson said in 1949, “The Constitution is not a suicide pact.” But national security should not be used as a broad talisman to ward off requests for information.

In the mid-1970s, several committees looked into abuses by intelligence agencies, including a committee chaired by Sen. Frank Church, the U.S. Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities.

A permanent U.S. Senate Select Committee on Intelligence, established in 1976, is now supposed to provide some oversight of intelligence activities. Calling activities such as MKULTRA “intelligence activities,” however, seems a misnomer.

MKULTRA proved tragic. If only more sunshine had penetrated this CIA adventure before it was implemented, maybe this real-life “Manchurian candidate” scenario would never have materialized. Maybe someone with a little sanity and humanity would have stopped the tragedy in its incipiency. At least, one can hope that more rational minds would have prevailed.

However, too much secrecy not only prevailed then but arguably was also condoned after the fact by the U.S. Supreme Court. For anyone who believes that ours is a truly open society, CIA v. Sims probably would be sobering reading. It’s certainly something to reflect upon as “Sunshine Week” nears.

Sandy Davidson, Ph.D., J.D., teaches communications law at the MU School of Journalism. She is a curators’ distinguished teaching professor and the attorney for the Columbia Missourian.

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