Smith-Mundt does NOT apply to DoD

Attention all Information Operations personnel: The Smith-Mundt Act does not apply to you!

Next time a Public Affairs Officer or JAG tells you that you can’t run a good IO against the enemy because you might be “propagandizing the American people,” tell her to read the law.

Time and again I’ve seen it in writing where military PAOs and JAGs sabotage wartime info ops by invoking the 1948 Smith-Mundt Act.

The law, which established US public diplomacy and international broadcasting as we know it today, contains a provision that bans the State Department and the former US Information Agency (USIA) from releasing information to Americans that is designed for foreign audiences.  USIA was an independent agency under the State Department.

The Smith-Mundt Act is officially known as Public Law 402. See Title 22 of the United States Code. The part that military public affairs officers and lawyers wrongly invoke is Chapter 18, Subchapter V,  “Dissemination Abroad of Information About the United States.” The operative language appears in § 1461. The “Secretary” in that clause, as the rest of the law specifies, is the Secretary of State.

Smith-Mundt and its amendments in the 1972 Foreign Relations Authorization Act, the 1985 Zorinsky Amendment, and the Foreign Affairs Reform and Restructuring act of 1998 refer only to the State Department and USIA.  The law is written very narrowly.  There is no mistaking that Congress did not intend for the law to apply to the Department of Defense.

If Congress wants the law to apply to DoD, it can amend the law. Until then, the Pentagon should stop acting like it’s bound to Smith-Mundt. The Secretary of Defense should instruct all PAOs and JAGs from using the law as a pretext for shutting down IO, and should discipline those who fail to comply.