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19 Colum. J.L. & Soc. Probs. 209 (1985)
National Security and the First Amendment: The Proposed Use of Government Secrecy Agreements under National Security Directive 84

handle is hein.journals/collsp19 and id is 219 raw text is: National Security and the First
Amendment: The Proposed Use of
Government Secrecy Agreements
Under National Security
Directive 84
Government secrecy in the interest of national security has
been accepted as a practical necessity since the beginning of the
United States.1 Defining the parameters of the government's right
to maintain secrecy, however, has been the subject of continuing
The recent attempt by the Reagan Administration to expand
the use of secrecy agreements has once again focused attention on
the issue of how far the government may go in suppressing the dis-
semination of information for reasons of national security. On
March 11, 1983, President Reagan issued an unpublished directive,
National Security Decision Directive 84 (NSDD             84),2 which or-
dered all executive agencies to promulgate guidelines requiring all
employees with access to Sensitive Compartmented Information
(SCI)3 to sign nondisclosure agreements. These nondisclosure
* Writing & Research Editor, Colum. J.L. & Soc. Probs., 1984-85.
1. Henkin, The Right to Know and the Duty to Withhold, 120 U. Pa. L. Rev. 271, 273
(1971). A precedent for governmental secrecy was set very early on. In 1775 the Continental
Congress adopted a policy of secrecy for its meetings. B. Ladd, Crisis in Credibility, 11-12
(1968). The deliberations of the Constitutional Convention in 1787 were also kept secret.
Henkin, supra, at 273. Negotiations of early treaties such as the Jay Treaty were conducted
in an atmosphere of the utmost confidentiality, to the point that President Washington
refused a request of the House of Representatives for papers pertaining to them, pointing
out that consent of the House was not necessary to the validity of the Treaty. B. Ladd,
supra, at 12. And as early as 1789 the executive was empowered by statute to classify gov-
ernment documents and conceal them from the public. Kalijarvi & Wallace, Executive Au-
thority to Impose Prior Restraint upon Publication of Information Concerning National Se-
curity Affairs: A Constitutional Power, 9 Cal. W.L. Rev. 468, 481 n.59 (1973).
2. Safeguarding National Security Information, National Security Decision Directive
84 (Mar. 11, 1983), infra app. A.
3. Sensitive Compartmented Information is a category of classified information that is
classified for national security reasons as Top Secret, Secret, or Confidential but is also
subject to special access and handling requirements because it involves or derives from par-
ticularly sensitive intelligence sources or methods. It is compartmented, which means it is
shown only to officials who need to see it. See 48 Fed. Reg. 39,313, 39,314  1 4 (order Aug. 30,

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