No, the Smith-Mundt Act doesn't apply to the Defense Department

The misinformation around the Smith-Mundt Act borders on willful disinformation at this point

The misinformation around the Smith-Mundt Act is fantastic. Unfortunately, at some point, much of it, including public legal analyses and especially internal legal and other guidance, seems bent on earning the label of disinformation. I had not planned on publishing here for another week as I am focused on a more critical writing effort, but I was, I’ll admit it, triggered by a reference to the Smith-Mundt Act.

The setup was a conversation that began with a comment about the amount of money and effort by an adversary’s information operations efforts. The forum is not public and includes many national security-related and interested folks, so you’ll understand my vagueness about what others said. The conversation unsurprisingly shifted into US efforts, budgets, and the like that include but span far beyond “public diplomacy,” “information warfare,” “information operations,” and “strategic communication.”

I’ll set aside, for now, that budgets without leadership or strategic coherence greatly diminish any value suggested, assumed, or hoped for when seeing the significant sums of tax dollars spent. These sums aren’t vast, just great, but paltry relative to the tangible elements of national security (i.e., the things that go boom or deliver a boom) that most focus on and gain the most attention. Moreover, the absence of leadership across government departments – and above – is an endemic problem afflicting all levels of interaction, inhibiting training, empowerment, encouragement, and agility to proactively and reactively function in this area. But again, I’ll set this aside.

Naturally, someone responded that certain restrictions limit US information operations capabilities abroad. Of course, I asked what exactly were these specific restrictions as I shared that in my experience, many “restrictions” were institutional and conceptual rather than statutory (i.e., established by an act of Congress).

The reply asserted that the Smith-Mundt Act, even as amended by the Modernization Act of 2012, continues to limit what the Defense Department and others can do. I expected this answer. This is an institutional response, and the respondent only conveyed what they were told (likely countless times over many years). That this remains common “knowledge” – or an “accepted wisdom,” take your pick – is impressive and appalling. The legal advisors the respondent came into contact with directly or indirectly, and the people those advisors and others informed and influenced over the past ten+ years failed the respondent, the institutions, and our national security requirements. That’s a hefty charge, and I’ll stand by it, partly because of the acknowledgment the Smith-Mundt Act was amended.

Let’s start with the Smith-Mundt Modernization Act of 2012. The primary purpose of this amendment was to insert the following text into 22 USC 1461-1a, the oft-cited domestic dissemination bit of the Smith-Mundt Act:

The provisions of this section shall apply only to the Department of State and the Broadcasting Board of Governors and to no other department or agency of the Federal Government. [italics mine]

The then-chairman of the House Armed Services Committee, who created and championed this amendment, wanted to insert this language because of the defective legal and amateur (and academic, I’ll add) analysis that held the Smith-Mundt Act’s restrictions applied to the Defense Department.

The perception in the Defense Department conforms with this August 2006 memo produced by a department lawyer: “although [the Smith-Mundt Act was] addressed to the activities of USIA and now the Department of State, Smith-Mundt, in its text and legislative history, indicates a strong aversion by Congress to government activities intended to influence a domestic audience.”

A reference to the Smith-Mundt Act should not have appeared in this memo, nor should it have appeared first among the three “restrictions on influencing a domestic audience [that are] applicable to the Department of Defense.” The three examples, the other two being Title 50 restrictions and the (very) common “publicity and propaganda riders” that appear in (probably or nearly) every appropriation act, are used to demonstrate Congress spoke with a “clear voice” on this matter.

The memo’s analysis seems solid, but the “clear voice” gets quite muddled quickly when scratching the surface. For example, the 1972 amendment by Senator Fulbright, referred to by the memo as clarification of the law, was instead part of his effort to shut down all information operations, notably foreign activities, as he attempted to close USIA, Voice of America, Radio Free Europe, and Radio Liberty. The 1985 amendment by Sen. Zorinsky, also cited as a clarification of the law was propelled by his view of a deep politicization and possible corruption at USIA. The Senator charged the agency with rampant nepotism; he was upset the USIA Director spent nearly $35,000 in agency funds for a home security system, and he lumped Otto Reich’s Office of Public Diplomacy nested in the State Department with USIA. I have researched the Smith-Mundt Act for well over a decade, and I can find not a single reference by Congress that the legislation, original or as amended, sought to broaden by implication or letter its application to the entirety of the State Department or the rest of government.

Like any other law review article this century of the Smith-Mundt Act, the analysis does not probe whether all information and influence operations by the State Department are covered (hint: they aren’t, generally only the stuff that used to be part of USIA before 1999). While some law review articles did raise other domestic information activities as a concern, such as the 2005 video news releases scandal, there was no relevance to the Smith-Mundt Act. None of the legal review journal articles and academic articles (or media/pundit/think tank comments) that I’ve read touch on, let alone answer the question of how a Title 22 statute that names explicitly the State Department, the Secretary of State, the Broadcasting Board of Governors, and the US Information Agency somehow magically applies to the Title 10, or Title 50, activities of the Defense Department. (The current statutes list names, organizations, and relationships long gone, as the text has not been adequately updated.) As I wrote in 2008, “If preventing government advocacy and influence operations on the American public is the goal, Congress should limit appearances by the executive branch on the Sunday talk show circuit, implement campaign reforms, among other changes.” The “clear voice” isn’t really that clear.

By the way, I’d advise not doing a general Google or Twitter search for the Smith-Mundt Act as you can get sucked into the world of tinfoil arguments that a) Smith-Mundt was “repealed” by Obama, b) the repeal led to massive domestic influence operations by the media, and other nonsensical arguments. On (a), the Smith-Mundt Act was not repealed in any way, shape, or form. It was amended through a Republican-sponsored effort to stop the Defense Department from invoking Smith-Mundt as a reason not to do something. Regarding (b), the argument is predicated on the false myth that the pre-2012 Smith-Mundt Act prevented all domestic propaganda, and the result is today’s biased and bad news coverage. Good Lord, this is not just false; it’s dumb. Let’s move on.

The Smith-Mundt Act appeared, and I’m postulating here, because of common lore, the “accepted wisdom,” and the “conventional wisdom.” But the memo made its point clear with this statement, which is supported by quickly confirmed facts and which does not require any reference to the irrelevant Smith-Mundt Act:

…such agencies may only do what Congress has authorized and funded them to do. The publicity and propaganda riders go further, however. Lest there be any doubt, the riders restate this principle, and in the case under discussion, with regard to covert propaganda. Thus, while Congress has funded various Information Operations activities abroad, it has never authorized or funded Information Operations activities targeting a domestic audience. Moreover, Congress has also authorized and fundedthe position of Assistant Secretary of Defense for Public Affairs, who obviously is permitted to target a domestic audience but for purely informational purposes only. Under both the general rule and the more specific rider then, DoD lacks the authority to engage in domestic influence operations.

For this note, I’m not going to delve into the text above and the differences between inform and influence, nor will I discuss the differences between capitalized Information Operations and lowercase information operations. Nor will I discuss that egregious examples of domestic influence by the Defense Department earlier this century came from the public affairs operation and not the IO (or “io”) areas.

I’m not saying there aren’t restrictions on the Defense Department’s ability to conduct (lowercase) information operations abroad that need to be changed. I’d wager the “restrictions” result from problems with leadership rather than actual statutory restrictions, mainly since the latter often follows the failure of the former. I am saying that the Smith-Mundt Act does not and never did apply to any activity of the Defense Department. Congress spoke with a clear voice in 2012 on this point, yet here we are in 2023 and still hearing that the Smith-Mundt Act somehow impeds the Defense Department. It feels like we don’t want to be successful, which I again chalk up to leadership, which includes not questioning institutional biases and “accepted wisdom.”

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There is the old lament that information operations are cheap relative to the tangible kinetic national defense options. Here’s a statement from October 1945 that remains relevant today when swapping out the specific weapon:

The interchange of skill, culture, and information costs very little in contrast to a single battleship in a fleet of battleships. Today I can hardly imagine a cultural-relations program on a world scale which, on an annual basis, would equal the cost of a battleship. A battleship is a traditional and orthodox expenditure of the taxpayer's dollar. The exchange of skills, knowledge, students, scientists, and other specialists is a relatively new idea and hence, to some unorthodox.

I will note that both “information” and “exchange” was interpreted in a far more expansive and inclusive way then than is typically thought of today. Every exchange and information engagement was an intentional influence operation.