When do we start the honest debate over the Smith-Mundt Modernization Act?

Thursday, May 31st 2012

What is it about U.S. public diplomacy that we must hide it from Americans? Is it so abhorrent that it would embarrass the taxpayer, upset the Congress (which has surprisingly little additional insight on the details of public diplomacy), or upend our democracy? Of our international broadcasting, such as the Voice of America, do we fear the content to be so persuasive and compelling that we dare not permit the American media, academia, nor the Congress, let alone the mere layperson, to have the right over oversight to hold accountable their government?  

The current punditry surrounding the Smith-Mundt Modernization Act of 2012 leaves little room to use the word “debate” due to the hyperbole, conflation, and liberal use of the word propaganda. It does, however, demand the frequent use of the word irony. The 1948 law meant to give America a voice, foster mutual understanding, empower engagement, and provide oversight has been so twisted that it is now invoked to muzzle, sow confusion over authorities, and ultimately obfuscates the practice, bureaucracy, and concept of public diplomacy to the extent that the Congress, the public, and even the State Department are at pains to provide examples of public diplomacy.

The prodigious labeling of public diplomacy as propaganda undermines the legitimate debate, at times purposefully. Today's common use of the word, unlike the past, is weighted as a pejorative.  To be sure, propaganda is not like pornography, which was famously described as something known when seen. I am not a pornographer when I say something is pornography but I am a propagandist when I intentionally use the label propaganda.  

If indeed U.S. public diplomacy, including our international broadcasting, is “propaganda” and unfit for Americans, is it fit for foreign audiences? Should people and organizations in the U.S. have the liberty to review and decide on whether to share that which their tax dollar purchased? The intent of the original Smith-Mundt was the media and the Congress would decide what was fit for domestic eyes. In that sense alone, the amended Act is outdated by the expansion of the term media and ubiquity of communication. However, the authority implicitly granted to the media and individual Members of Congress by the original Act to mediate what came inside the borders was revoked in 1972. 

Some suggest we leave the Act alone - let sleeping dogs lie. But it is not a sleeping dog, but an active problem. The current application of the law is confused as the Act is invoked nearly arbitrarily, often in detriment to our foreign policy and sometimes humorously. The common remark that the Internet makes the Act moot is true only because the State Department and the BBG are in violation of the Act by allowing its material to be available within the United States. The argument that Smith-Mundt protects public diplomacy is a mockery as a) Smith-Mundt does not appropriate money, b) Smith-Mundt does not authorize specific programs, and c) the lack of true firewalls to prevent domestic access to public diplomacy material disseminated abroad means the patently ridiculous argument, which conforms to the spirit and intent of the law as amended in the 1980s, that the public affairs bureaucracy, and not the public diplomacy bureaucracy, should manage the Department’s online presence. Likewise, adhering to the current law requires the BBG must spend the money to block U.S. domestic access to its websites – would Americans then seek to acquire the very online circumvention software the BBG makes available to Iranians and Chinese? – or take its websites offline. Shall we uphold the law or do we want the Government to skirt the law? Where does that end? 

(For the Public Diplomacy Council, adhering to the current Smith-Mundt would likely mean the forthcoming book by the Council with recent case studies of public diplomacy must wait until the 12 year moratorium on the release of such information domestically passes, or until a successful FOIA request is fulfilled, whichever is first.)

It is inconceivable to read the assertion the Modernization Act removes oversight over these activities. In fact, as the ACLU notes, the increased transparency created by the Modernization Act creates opportunities for broad oversight and accountability. The only other true oversight was the U.S. Advisory Commission on Public Diplomacy, and its authorization was allowed to expire this past December. The Advisory Commission has over the decades frequently recommended the same access, transparency and resulting oversight by the public. 

The hyperbole over the Modernization Act conveniently ignore the important details while exhorting the past wisdom of the Congress, which, unlike 1972 and 1985, spent considerable time and energy debating the legislation. Where is the discussion today over the distinction between "dissemination" and "access"? For those concerned about domestic dissemination, have they read the existing law, the Modernization Act highlights, that instructs the State Department and the BBG to "reduce such Government information activities whenever corresponding private information dissemination is found to be adequate" [22 U.S.C. 1462, or Sec 502 in the original Smith-Mundt Act] and to utilize "the services and facilities of private agencies...through contractual arrangements or otherwise" to the maximum extent possible [22 U.S.C. 1437, or Sec 1005 in the original Smith-Mundt Act]? Is this adequate or should it be changed? (Sec 502 was, by the way, construed in 1947 by the State Department and the Congress as a sunset clause for the Department's information activities.) Should the State Department's public diplomacy and the BBG's international broadcasting continue to be covered by the same restrictions? 

Does it matter to the pundits that in 1994, the Congress decided "political propaganda" by foreign governments aimed at Americans no longer needed to be labeled as such and changed a nearly sixty year old law? The clear implication is material from any foreign government is suitable for Americans.  

Want to know of examples of U.S. public diplomacy, beyond international broadcasting? Sorry, file a FOIA, wait 12 years per the current Smith-Mundt Act, or ask the Department to clear information about the activity through public affairs. In other words, U.S. public diplomacy is very much not public to the home audience.  

The Smith-Mundt Modernization Act of 2012 deserves and requires an honest appraisal of its merits and demerits, as viewed by each person. The taxpayer and the public diplomats deserve as much. Or perhaps we should ask China's CCTV, Russia Today, or Wikileaks to provide oversight over our public diplomacy?

(Note: the Modernization Act does actually modernize Smith-Mundt beyond the functional, it conforms the Act to modern realities: the Act's language was never completely updated to reflect changing bureaucracies, so some language reflects the pre-USIA years of 1948-1953, other language reflects the USIA era of 1953-1999, little of it reflects the division of USIA into the BBG and the State Department.) 

6 people have commented on this article so far

Matthew Armstrong

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Matthew C. Armstrong is an author, speaker, and strategist on issues related to public diplomacy. He is a member of the Broadcasting Board of Governors (BBG).

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WikiLeaks and BBG

We get it Matt -- you have been gunning for a slot on the BBG for some time now, and your efforts to get rid of Smith Mundt will likely help achieve that.

You ask, at the end of this latest piece, if it will take Wikileaks to provide oversight of public diplomacy.

From what is now known about the questionable actions and outrageous hubris of BBG/IBB, brought to light through the persistence of independent sites such as BBGWatch and others, a Wikileaks approach would be entirely appropriate.

What BBG/IBB essentially aims to do is obtain a cloak of respectability, the cover being the GNN (Global News Network) concept, for services that are still widely seen as propaganda.

As for FOIA requests, BBG/IBB deserve to be inundated with them.

Speaking of Cloaks...

The only people who consider the communication services associated with the BBG as propaganda are those who have never seen or heard them.

Anonymity does not enhance credibility.

Internet Not a Violation of Smith-Mundt

As the individual who proudly directed the placement of VOA on the internet, unless something has changed, there is an existing USIA General Counsel opinion that it is NOT a violation of Smith-Mundt. Is there some court finding to the contrary?

Denial of Access

Joe, to be clear, I highlight the Internet access issue as a strawman. I firmly believe the online presence is necessary and required, but the current letter and spirit of the law poses a problem.  

In 1998, which is likely after the GC opined, the DC Circuit court ruled that USIA was exempt from FOIA, in part because the judge conflated "disseminate" and "disclosure." The court noted then that even if people were able to get the material, it did not mean the restriction on USIA was lifted. 

The decade before, in Gartner v USIA, the court ruled that USIA material was to be available *for examination only*, as in no copying and no verbatim notes, in adherence to the Zorisnky and Fulbright amendments to Smith-Mundt (and completely opposed to intent of the legislators who passed Smith-Mundt). 

To keep this short, USIA GC likely relied on the principle that the material was "generally available" and did not target Americans (to be clear, the law is based on geography, not citizenship, so "people in the U.S." might be the better audience label). This was probably joined with the notion that few Americans were online and few spoke the foreign languages in use. Today's online community and diasporas are a bit different than then. 

However, as I noted, I have not seen the GC's opinion and I am not a lawyer. 

My analysis is largely based on a paper by Jeremy Berkowitz, who, as a law student at The Catholic University of America, wrote the best and most comprehensive judicial view of Smith-Mundt, "Raising the Iron Curtain on Twitter: Why the United States Must Revise the Smith-Mundt Act to Improve Public Diplomacy." (See http://mountainrunner.us/2010/02/iron_curtain_on_twitter/ and http://mountainrunner.us/2010/02/berkowitz/ for a public dialogue Jeremy and I had about his paper.)

I can tell you that the DoD's legal review whether Smith-Mundt applied to them, conducted in 2006 by outside counsel at the request of Policy, was assumptive. The opinion of the lawyer was essentially that while the Smith-Mundt Act did not apply to Defense, the lawyer felt the Congress, by other actions, may have intended it to apply to Defense so in the absence of alternative guidance from the Congress, Defense should consider Smith-Mundt as applying to them. Hill staff were not impressed when I shared this with them. (Further, there was Title X legislation, and language in appropriation and authorization laws, that provided the prohibition on domestic influence, they did not need to reach into Title XXII, which deals with State, but I digress.)

If you have a copy of the USIA GC opinion, or if a reader has a copy, or, knowing the membership, the former GC himself could forward me a copy, I'd like to see it and share it with Hill staff and other counsel for their opinion.

Much of this is moot barring a court challenge, right? The courts twenty years ago did defer to the legislative body to make the decision. 

Bear in mind that part of the problem with the current legislation is its sometimes haphazard, seemingly arbitrary at times, application.  

Anon, Wikileaks has blood on

Anon, Wikileaks has blood on its hands... ENTIRELY APPROPRIATE! http://www.dailymail.co.uk/news/article-2145218/WikiLeaks-cable-led-Iran...

FOIA is pointless... We need PD drano, not more hair in the pipe.

Vaclav Haval found reading an American newspaper that was left on a train to be entirely enlightening. Just look at the change that brought.

David, there is another segment of the population who rails against a US PD effort.... That is our enemies. Ironically, the same people who aided Wikileaks get their news from Russia Today and PressTV.

Smith - Mundt Act

Your commentary is right on the money, Matt. Smith - Mundt should have been repealed many years ago. What sense does it make -- especially in our 21st century wired world -- to prohibit the American people from listening to the Voice of America, especially when Natl. Public Radio inundates us with BBC material. What are the folks who oppose the repeal of Smith - Mundt afraid of? Americans have every right to know what their government is doing in the misunderstood world of public diplomacy. What I don't understand, however, is why the repeal measure was tucked into the Defense Department's appropriations act. What sense does that make? I object to DoD's "strategic communications" activities (fake news stories, paying foreign journalists etc. etc.) being lumped in with the State Dept.'s PD activities.

Keep fighting the know-nothings on this subject, Matt, and good luck in your crusade to make public diplomacy materials available to the American taxpayers.

Guy W. Farmer USIA (retired) Carson City, NV

p.s. Former PAO in Australia, Peru and Venezuela and chief of VOA's Spanish Branch (1977-79)

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