Chris Hildreth.
Chris Hildreth.

Information Lockdown

With terrorism threats and rumblings of war, we find ourselves living in a security-conscious society. But when documents begin to disappear from library shelves and professors are censured for their words, has national security put academic inquiry at risk?
November 30, 2002
 

In October of 2001, Ann Miller, public documents librarian in Duke's Perkins Library, received a document that she hadn't exactly anticipated for her collection. It was a memo to depository librarians from the U.S. superintendent of documents. The memo referred to a CD-ROM that had been singled out by the U.S. Geological Survey's associate director for water; the CD-ROM carried the dry title "Source-Area Characteristics of Large Public Surface-Water Supplies in the Conterminous United States: An Information Resource for Source-Water Assessment." From there, the language was succinct: "Please withdraw this material immediately and destroy it by any means to prevent disclosure of its contents."

The directive apparently grew from a concern that terrorists might tap into the water system. Duke is an official government depository site; its holdings of official documents essentially belong to the government. So this was a recall notice that had to be honored.

" The CD-ROM had been in the collection for several years," says Miller. "It concerned national water supplies, but we weren't asked to withdraw the CD-ROM on state water supplies, which we also have. And this notice only applied to depository libraries. What if one of our geologists or geographers had purchased a copy? They didn't have to return it. So it was a little odd."

Perhaps it seemed a little odd, but this seek-and-destroy mission points to a new stress on security that may be intruding on the free flow of information. Miller's memo file includes a message to executive departments and agencies from Andrew Card, President Bush's chief of staff. Last spring, Card asked Justice Department officials to safeguard "government information in your department or agency regarding weapons of mass destruction, as well as other information that could be misused to harm the security of our nation and the safety of our people."


One thing government did, right around the time that Miller found herself hunting down the offending CD-ROM, was to pass the USA Patriot Act. (Its formal and imaginatively cumbersome title is the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.) In amending more than fifteen federal statutes, the Patriot Act expanded the authority of law enforcement.Those are awfully broad guidelines, Miller observes. And they're being applied across the range of information media--potentially by low-level bureaucrats. Federal Computer Week, a government watchdog group, reported this fall that "tens of thousands of documents" have vanished from government websites. One month after last year's terrorist attacks, the Federal Energy Regulatory Commission blocked access to website information on hydropower plants, gas pipelines, electricity transmission lines, and other components of the energy infrastructure. "I'm worried that we won't be able to look back on this time period and get any sense of our history, of who we were and where we've been and how we got to where we are now," Miller says. "That's what government publications do."

The American Library Association points out that under the act, the FBI can acquire library circulation records, which are now treated as business records. While University Librarian David Ferriero says he finds that provision disturbing, the practical effect is hard to gauge. "In our online system, we don't keep histories. When a transaction is completed, when you return your book, that link is broken and there's no trail. So no one could go into our system under your name and pull up everything that you've ever borrowed. The only thing they could determine is what you currently have out."

Of course, he adds, "A faculty member here at Duke has year-long borrowing privileges, which are renewable, so they could have quite a collection of material out. In fact, until we have more space, I encourage the faculty not to return their books."

What the Patriot Act encourages is new cooperation by libraries. With a court order, libraries now have to help monitor a user's electronic communications sent through the library's computers. In seeking records, agents are not required to demonstrate "probable cause" of a crime; they need only claim that those records are linked to a terrorism investigation. Unless agents were physically monitoring a public-access computer, Ferriero says, it's hard to see how they could peg an individual user to a particular website. Still, he says, "since so much of what we're doing involves Internet access, and since we have so many opportunities within the physical space for people to do that, librarians have a genuine concern" about that aspect of the Patriot Act.

The Patriot Act is also bringing a new meaning to library silence. Librarians served with a search warrant issued under the new rules may not disclose the existence of the warrant. They can't discuss the fact that records were produced as a result of the warrant. And they have to resist telling a library patron that his records were given to the FBI or that she is the subject of an FBI investigation.

Access to information is now an issue that transcends libraries. A National Academy of Sciences report on science, technology, and terrorism points out that debates on the free exchange of ideas always arise during wartime. Duke doesn't allow classified research on campus. Judith Dillon, director of the Office of Research Support, says classified research "is contrary to our mission. The mission of a university is to disseminate information, not keep it secret."

More than philosophical stances come into play. A university's status in the eyes of the IRS hinges on that traditional mission, she says, and a shift in policy (even, ironically, in service of government imperatives) could endanger its tax-exempt status. For graduate students, involvement with classified research could be career-deadening. As she puts it, "What do you do with a dissertation that's based on classified research? You can't defend it. You can't put it in the library. In essence, you don't have a dissertation."

Dillon says the university will permit prior review of publications--which is different from the right to refuse publishing research findings. "The issue of whether we will accept a restriction on publication is one that comes up frequently. We always fight it." Prior review focuses narrowly on two areas. "First, they can ask to see if you've revealed their confidential information--that is, information that you may have been given. In that case, you'll be asked to remove it or to disguise it. Second, they can ask you to delay publication so that patent applications can be made. That's it. In either case, they can't stop publication. They can only ask you to make some changes."

In the last year, Duke turned down a Department of Defense grant that involved an engineering faculty member. Duke would have been a subcontractor with a principal investigator at Mississippi State University. DOD wouldn't agree to unfettered publication. "We could not get around the restrictions on publication," says Dillon. "It was absolutely impossible. We tried all kinds of different wording of the publication clause, and they would not change it." She learned that at one point "everything in the lab where the project was going on was boxed up and carted off--dissertations, everything," she says. "Now it's all back out of the boxes. But this does happen. It is a real consequence and it is a real fear with classified research."

Increasingly, government contracts are carrying clauses that would require the university to obtain an export license before technical data reach another country. That might cover giving a presentation in a foreign country, or involving a foreign student or visiting professor in the research team in this country. So the Department of State or the Department of Commerce would have the right to approve or disapprove the "export." But Dillon sees this as an example of bureaucratic inconsistency: If in fact they're doing fundamental research, research institutions by law are not subject to export regulations.

Some clauses are overtly targeting foreign nationals, with language specifying that all foreign nationals working on a project must have the approval of the contracting officer. "We fight very hard to remove those clauses. It isn't up to them to say who and who may not be the people we designate to have on a project," Dillon says.

Dillon worries about a newly emerging middle ground between fundamental research and classified work, one that takes the form of "sensitive information." "How do you define sensitive information?" she wonders. "These clauses have absolutely no criteria in them whatsoever. But they allow a contracting officer to sort of sit there and look at a publication and say, well, this might be sensitive--no explanation necessary."

WILLIAM VAN ALSTYNE, Professor of law

"Even the AAUP concedes that we do have the rights of citizens, but we should remind ourselves that institutions will often be judged by our known associations."
WILLIAM VAN ALSTYNE
Professor of law. 
Les Todd.

Such creeping ambiguity is a departure from a longstanding executive-branch policy. A Reagan administration national-security directive stated that "No restrictions may be placed upon the conduct or reporting of federally funded research that has not received national-security classification." That policy was reaffirmed just a year ago by Condoleeza Rice, the current national security adviser. But government agencies are becoming more insistent about reviewing findings--even from unclassified research--for sensitive information.

In the competition for research contracts, universities, too, are reckoning anew with the definition of prudent--or appropriate--policies. James Siedow, vice provost for research, says there's pressure to rethink the classified-research prohibition at Duke. A research policy committee he chairs will be scrutinizing the ban.

" In the post-September 11 world, there's clearly going to be a lot of federal funding that may come with strings attached. There are components of the university, particularly engineering, which may be locked out of large pools of federal monies if we're caught in this dilemma," he says. But it's more than a money matter. "We have an engineering school with lofty ambitions. And being an engineering school, they're going to see those more practical things as being very much part of what they do. At the moment, they can't do that. So we just have to recognize that if we're going to play in the big leagues, we need basically to give the school the wherewithal to compete without having one hand tied behind its back."

There's plenty of precedent for hand-holding between the university sector and the federal government. After all, as MIT's Technology Review magazine puts it, the World War II Office of Scientific Research and Development generated civilian research "from fighting malaria to radar to the atomic bomb." And MIT presents an interesting model on matters of science and secrecy: MIT bans classified research on campus but allows it at secure, off-campus facilities, notably its Lincoln Laboratory.

JUDITH DILLON, Director, Office of Research Support

"The issue of whether we will accept a restriction on publication is one that comes up frequently. We always fight it."
JUDITH DILLON
Director, Office of Research Support. 
Les Todd.

Historically, though, government's embrace of the academy hasn't been a stranglehold. In their survey The Development of Academic Freedom in the United States, Richard Hofstadter and Walter Metzger note that academic freedom is a modern term for an ancient idea. It probably dates at least as far back as Socrates' defense against the charge of corrupting the youth of Athens. But the university itself--including disputation as an academic form--has medieval roots. "In internal matters the universities had the prerogative of self-government," according to Hofstadter and Metzger. "They were autonomous corporations, conceived in the spirit of the gilds; their members elected their own officials and set the rules for the teaching craft."

At various times and in various ways, the concept of academic freedom has been articulated by the American Association of University Professors and allied groups. In a 1915 statement, the AAUP supported "freedom of inquiry and research; freedom of teaching within the university or college; and freedom of extra-mural utterance and action." An updated 1940 AAUP statement said "the teacher is entitled to freedom in the classroom in discussing his subject, but he should be careful not to introduce into his teaching controversial matter which has no relation to his subject." When a faculty member speaks or writes as a citizen, according to the statement, "he should be free from institutional censorship or discipline, but his special position in the community imposes special obligations."

Academic-freedom purity hasn't always been the position of the courts. Duke law professor William Van Alstyne, a noted First Amendment scholar, says academic freedom can be seen as extending either to the institution or to the individual faculty member or student--a triad that can sometimes be in conflict within itself. It was only after World War II, he says, that the Supreme Court adopted a strong First Amendment stance and elaborated on academic freedom within the special protection of the First Amendment. "Roughly from 1965 on, the First Amendment has grown more and more robust and, correspondingly, academic-freedom claims based on the First Amendment have tended increasingly to win. It was not always so."

In the past few decades, the Supreme Court and lower courts have acknowledged universities' freedom to maneuver, whether to set a standard curriculum, emphasize certain schools of thought in their programs, or, as in the Regents of the University of California v. Bakke, establish affirmative-action guidelines as an educational imperative. (In the latter case, decided in 1978, Justice Lewis Powell wrote an opinion that granted the medical school at Cal-Davis an exception to what the Equal Protection Clause would otherwise demand, namely, strict color-blindness in admissions.)

Most of the academic-freedom cases, though, have focused on the professional prerogatives of the scholar against the restrictions of the state or the institution. Loyalty oaths in the academy were largely upheld in the Fifties. But in Baggett v. Bullitt, decided in 1964, the Supreme Court turned aside the requirement of professors (and others) at the University of Washington that they swear not to have "subversive" intentions. There, the Court hinged its ruling on student academic freedom--that is, the view that learning requires a faculty whose critical skills aren't arbitrarily reined in. Three years later, in Keyishian v. Board of Regents, the Court struck down a similar New York loyalty oath, with a strong nod to the First Amendment. As Justice William Brennan saw it, "[A]cademic freedom...is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom."

It's a special concern to the academy when the First Amendment Center, a think tank on free-expression issues, reports--as it did this summer--that "for the first time in the annual State of the First Amendment survey, almost half of those surveyed said the First Amendment goes too far in the rights it guarantees." The survey saw a jump by ten percentage points from 2001. More than four in ten said they would limit the academic freedom of professors and bar criticism of government military policy. For many Americans, academic freedom and other fundamental freedoms are "possible obstacles in the war on terrorism," center officials said in a statement.

Academic-freedom controversies loomed large over the summer for Duke's neighbor, the University of North Carolina at Chapel Hill. The furor came from a reading assignment for freshmen, Approaching the Qur'an: The Early Revelations, by Michael A. Sells. The book is a translation of thirty-five early suras, or chapters, of the Koran, accompanied by commentary and a glossary of Islamic terms.

A conservative Christian group charged that the assignment represented "forced Islamic indoctrination," and took the university to court. At the same time, the North Carolina House passed a bill that would deny funding to Carolina's summer reading program if it did not give equal time in the classroom to "all known religions." The university's board of governors, whose thirty-two voting members oversee the flagship Chapel Hill campus along with the system's other components, was a slow-to-arrive ally of the school. It failed to produce the needed two-thirds majority vote for a resolution proclaiming the importance of academic freedom. Some objected on procedural grounds; others, reportedly, were reluctant to offend members of the legislature.

But UNC President Molly Broad asked the governing board to reconsider its vote. She voiced concerns about accreditation problems that could arise from a perceived lack of support for academic freedom, and raised the possibility of a reprimand from the American Association of University Professors. Eventually, the board bought into academic freedom. That action followed on the heels of Carolina's own Faculty Council executive committee, which had voted unanimously to uphold "academic freedom and the fair exchange of ideas," as well as a commitment to "understanding cultures and conflicting values of all lands."

In the midst of the controversy, Duke President Nannerl O. Keohane sent a strongly supportive letter to the chairwoman of the Faculty Council at UNC-Chapel Hill. Keohane noted, "At a time when our nation is focused on challenges that directly threaten the freedoms that make our country a model for the world, it is useful to remember that those who have attacked us would move quickly to prohibit free discussion. It is all the more important, therefore, that we stand firm, as you and your colleagues have done, in defending core values which throughout history have characterized the very best institutions of higher education."

Challenges to academic freedom are hardly new. In his 1989 book Stalking the Academic Communist, David R. Holmes documents some of the effects of McCarthyism. "Because so many of the firings were done quietly (especially the nonrenewal of contracts for untenured faculty), done ostensibly for other reasons, or were not reported to the AAUP," he writes, "we may never know the actual numbers of faculty dismissed during the late 1940s and early 1950s. It is probable, however, that the total number of faculty dismissed for political reasons during the McCarthy era surpassed one hundred. This estimate does not include the many faculty who, under threat, resigned or chose to take early retirement."

Higher-education institutions were all too ready to join the campaign to root out Communists. In a 1953 statement, the Association of American Universities, which represented the administrations of the nation's leading research universities, declared: "Above all, a scholar must have integrity and independence. This renders impossible adherence to such a regime as that of Russia and its satellites. No person who accepts or advocates such principles and methods has any place in a university."

As a historian of America, Duke's William Chafe, dean of the faculty of Arts & Sciences, looks back on that era and sees some unpleasant echoes in our own time. "There were some serious breaches, even at those schools we would identify as part of the fortress of academic freedom. It's scary, the number of people who were willing to compromise the intellectual freedom of some of their faculty colleagues and to be complicit in the hurting of their careers." Today, he says, campuses are "more institutionally conscious of the need to preserve their independence than was true in the 1950s or even the teens, when faculty were fired for being opposed to World War I."

In their book, Hofstadter and Metzger refer to the nationwide "cult of loyalty" in World War I. At the University of Virginia, the head of the journalism school was charged with disloyalty--and eventually dismissed--for a speech in which he declared that "we can win the war only by freeing the spirit of democracy in the Germans by goodwill," that "war does not remove the menace of autocracy [or] make the world safe for democracy," and that Russia would be the spiritual leader of the next generation. Columbia's president formally withdrew the privilege of academic freedom for the duration of the war. "What had been tolerated before becomes intolerable now," he said. "What had been wrongheadedness was now sedition. What had been folly was now treason."

Chafe says today, he worries about "a willingness to make judgments about people who criticize the government or who raise questions about our policy on terrorism. They are being subjected to highly generalized denunciations, not from within the university but from outside the university."

Some of the strongest denunciations have targeted Sami Al-Arian, a tenured computer science professor at the University of South Florida. In August, the university accused Al-Arian of links to terrorism. It then asked a Florida court to rule on whether firing him would violate his constitutional rights. As The Chronicle of Higher Education noted, "The idea that a professor who had not yet been fired would have to defend himself in court frightened some faculty members at South Florida and elsewhere."

ANN MILLER, Public documents librarian, Perkins Library

"I'm worried that we won't be able to look back on this time period and get any sense of our history, of who we were and where we've been and how we got to where we are now."
ANN MILLER 
Public documents librarian, Perkins Library. 
Les Todd.

In the mid-1990s, a federal grand jury spent more than two years looking into Al-Arian's ties to two organizations. No charges were ever filed. But just after last September's terrorist attacks, he appeared on The O'Reilly Factor, a television talk show on Fox News Channel, and listened to host Bill O'Reilly accuse him of associating with terrorists. O'Reilly quoted a speech Al-Arian had given in Arabic more than ten years ago in which he had called for "Death to Israel." According to The Chronicle's reporting, Al-Arian has since said that he meant death to the Israeli occupation of Palestinian lands, and that he would never support terrorist acts.

Duke Law's Van Alstyne was chair of the American Association of University Professors Committee that investigated the case. (Van Alstyne has been national president of the AAUP and AAUP general counsel, and chaired the Committee on Academic Freedom of the Association of American Law Schools.) In an interim report, the committee concluded that Al-Arian's statements "fell well within the ambit of academic freedom," and that other charges pending against him were "too insubstantial to warrant serious consideration as adequate cause for dismissal."

In Van Alstyne's view, the South Florida action departs from academic due process; there was no effort at mediation, no peer-group judgment by other faculty members. But even deeper issues arise with the university's legal course. "This offends the First Amendment and not simply standing AAUP statements on academic freedom," Van Alstyne says, "with the university saying, we're not merely going to give you notice of dismissal, we're going to sue you. So you hire an attorney and defend against our claim that when we fire you, we will not be violating any legal rights."

South Florida is making claims about Al-Arian's terrorist connections, Van Alstyne stresses, that haven't been validated by grand juries. "It is a puzzle why the university feels it is incumbent to make its independent charges when the federal government has made none." If Al-Arian were indicted and put on trial, he adds, the university could justifiably take a different stance. In that event, "it might very well be that his sheer inability to meet his responsibilities would require at least if not outright sacking, then termination with a certain severance pay. And surely if he were convicted, his inability to perform the terms of his agreement with them--to render the service for which he receives a stipend and fringe benefit--would give them full cause to terminate."

" For the most part, the AAUP's position is that in order to cut the tie, the institution must be able to show the manner in which the faculty member has abused his position as an academic," Van Alstyne says. "That would be falsifying data. That would be also abusing your post to advance a private agenda unrelated to your work." South Florida has claimed that when Al-Arian was heading up a nonprofit foundation, he was using his professorial status to gain credibility in fund raising. But there's no support for that claim, Van Alstyne says. And there's no accusation that, on campus, Al-Arian might have been, for example, misusing his access to computers.

And what if a professor were seen as merely spouting a pro-terrorism line? Even granting his First Amendment rights, would such professing make him right for the classroom? Van Alstyne says that could be a less clear-cut scenario. "The peculiarity, as it were, if not criminality of one's behavior other than in a professional role could certainly raise a fair question about your professional capacity." He can imagine situations--not precisely Al-Arian's--where professors' public involvements "will necessarily produce a difficulty in their teaching, because of the alienation of those whom they're expected to teach and maybe of their colleagues as well. Then it becomes difficult for the university. Even the AAUP concedes that we do have the rights of citizens, but we should remind ourselves that institutions will often be judged by our known associations."

Such strains in the classroom should not be a rationale for dismissal, Van Alstyne adds, any more than Al-Arian's dismissal might be justified by concerns about the feelings of influential constituencies. That would lead to "the heckler's veto," he says, "so that if alumni of the University of South Florida don't like Mr. Al-Arian's politics, then by canceling their contributions, they provide the university an excuse" to dismiss him.

" And you might say, won't that make it hard on the university? Yes, it certainly does. In theory, a university could be destroyed because of the disaffection of those upon whose financial goodwill the institution depends. But what, then, is the alternative? The sharp alternative is that whenever an institution's ability to deliver academic services is threatened by the loss of funds, then it must track down the source of the threat--not the donor, but whoever provoked the donor. That becomes the reason to sack them. And that's the end of academic freedom."

The heckler, if not the heckler's veto, emerged as an academic-freedom issue this fall with the convergence of international events: the deepening conflict between Israel and the Palestinians, and the growing threat of war with Iraq. The Middle East Forum, a pro-Israel research and policy group, started a website that included "dossiers" on scholars it deemed intellectually suspect. It also invited "reports on Middle East-related scholarship, lectures, classes, demonstrations, and other activities." After some negative press, the organization eliminated the dossiers but persisted with its "Survey of Institutions." Some of the faculty members singled out--and sympathizers who asked to be added to the list as a gesture of protest--saw the whole effort as pernicious. The New York Times quoted one professor as saying, "It's not so intimidating for people like me, with tenure, but it makes graduate students and untenured professors very nervous, and makes it even harder to talk about Israel."

The use of websites "makes techniques of potential intimidation more cheaply and readily available to larger numbers of persons and groups," Van Alstyne says. "A lot of critical political speech is meant to be intimidating. But the order of magnitude is certainly enhanced enormously through the capacity of the Internet, just as the gift of useful free speech is enormously enhanced."

Web-spread criticism may challenge the academic freedom of the opinionated professor. But for academics engaged in the public arena, Van Alstyne suggests, that comes with the territory. Just this fall, Harvard president Lawrence Summers called demands that colleges divest their stock in Israeli companies "anti-Semitic in effect if not intent." Some academics celebrated that characterization for its honesty. Others faulted it for potentially stifling campus debate.

Says Van Alstyne, "It's standard First Amendment law that the more one becomes enmeshed in public issues, the more one submits oneself to First Amendment-protected abuse. The more you exercise a robust freedom of speech on political issues, the more you become a vulnerable target of other people's animus toward you."

And the more the campus enshrines academic freedom, he suggests, the greater the contribution to the public good. He compares a university to the office of devil's advocate within a church: While faithful, it aims "not to confer sainthood unrigorously."

Faculty members, then, are "licensed truth-hunters" whose work is defined by free debate and who serve to keep free institutions in check. "An academic institution does not sack its faculty because outsiders or others do not like their work or think their work is insidious. The very function of an academic institution is to nourish critical thought, to re- examine the ideological status quo. The whole idea of research, literally, is to search again, think about it again, look at it again."