Mr. President -- Tear Down This Wall (The one at the National Archives)

A key element of President Obama’s May 27, 2009, memorandum directing the development of recommendations for revisions to the Executive Order governing the classification and declassification of national security information is the establishment of a National Declassification Center (NDC) “to bring appropriate agency officials together to perform collaborative declassification review under the administration of the Archivist of the United States.” During the Bush administration, I ardently supported and fostered implementation of such a process. However, even at the time I recognized that all an NDC would accomplish is bring significant efficiencies to a declassification process that was ossified under the Bush administration. This ossification occurred when the governing Executive order was changed in 2003 to require:

Records containing information that originated with other agencies or the disclosure of which would affect the interests or activities of other agencies shall be referred for review to those agencies and the information of concern shall be subject to automatic declassification only by those agencies” (section 3.3 (h)).

Rather than the declassification process, imagine a situation whereby the challenge was cleaning up a city’s streets in the early 20th century when horse drawn trolleys were the mainstay of mass transit. In such an instance, the creation of an NDC is analogous to giving the street sweepers better brooms and shovels rather than questioning the very need to depend upon horses in the first place to drag around a trolley car.

Dating to the times of FDR, the efforts of any administration to revise national security classification policy has mostly resulted in tinkering around the edges while preserving the fundamentals. When then President Clinton revised the Executive order governing classification and declassification in 1995, he went slightly beyond mere tinkering. Specifically, on November 10, 1994, President Clinton issued an Executive order that declassified, in bulk, a selection of classified records within the National Archives. This unprecedented Order declassified approximately 45 million pages or 14% of the National Archives holdings of classified material, including classified holdings through the end of World War II, and an equal number dating into the 1970s (h/t FAS Project on Government Secrecy).

Thus, even if Obama does not want to embrace real change in classification and declassification policies but is content to simply continue with tradition, the President needs to do something similar to what Clinton did 15 years ago. As a minimum, President Obama should order the bulk declassification of all classified records in the National Archives, at least through February 15, 1989, the date that the final Soviet troops departed Afghanistan. Additional select holdings, at least through September 11, 2001, should also be subject to bulk declassification.

The President should take these steps not only to ensure an informed populace, the lifeblood of our form of government, but also to enhance our national security and make our citizens safer. The above dates are significant because they represent demarcations in the lives of every day Americans akin to the end of World War II. The seeds of the serious national security threats confronting our nation today were sown in our outdated cold war policies that we continued to pursue throughout the ‘70s and ‘80s in areas such as the Middle East and Central Asia. Yet, I am certain that, for example, the average Mujahedeen has a better understanding of the origins of the current troubles in Afghanistan than does our average Senator or Congressman, the very leaders we depend upon to guide and oversee our national security policies. Similarly, the average Iraqi or Iranian likewise has a far better understanding of the origins of today’s conflicts in that area than do many Americans. And a significant reason for our collective ignorance with respect to issues of such grave importance is that much of the official information relating to them remains needlessly locked within the vaults of the National Archives.

Compared to the extraordinary blood and treasure our nation’s citizens have sacrificed during the current decade due to ill-fated national policies fostered out of ignorance more than anything else, there is nothing in the records outlined above that can come even close to inflicting the same level of damage to our national security that we have endured since 2001, and continue to endure. Looking back to Clinton’s bulk declassification in 1994, the world in the early nineties still bore much in common with the world of the late 1940s. From a geo-political, military, economic and technological perspective, the two eras had much in common. We even communicated amongst ourselves the same way, by either writing a letter or picking up a landline telephone. Yet, there is no significant damage to our national security that has ever been attributed to the Clinton bulk declassification order.

In this regard, the world of the late 1980’s is light-years behind today’s world. In every meaningful aspect, but especially from a national security perspective, the concerns confronting our nation today bear little resemblance to those of the Reagan-era. Mr. Gorbachev did indeed tear down "that" wall and the world was never the same.

The maturity of our nation was recently proven when our leaders were able to overcome petty political considerations and save billions of taxpayer dollars by finally cancelling the F-22 fighter, a weapon with its origins in the cold war. To do so, they had to overcome false national security arguments which disguised agendas that had nothing to do with keeping Americans safe. Similarly, President Obama could significantly advance the national security interests of our nation by, at the very least, adhering to tradition and subjecting a significant amount of the holdings of the National Archives to bulk declassification.

As admirable as the establishment of an NDC at the National Archives may be, it maintains a significant wall between Americans and information essential to their well-being. By advancing the cause of bulk declassification, the President may not be able to tear down that wall completely, but he should be able to make a pretty good-sized dent in it. In addition, it should save the American taxpayer a couple of hundred million dollars to boot. Even then, such a step would be just keeping with tradition.

Should the President have the desire to advance real change in this area, I’ll have more to write in future postings.

Checkless and Unbalanced

Updated Below:
Many of those who advocate increased openness and transparency within government have expressed a certain degree of disappointment with the Obama administration. This disappointment is not because of any hopes which such advocates unrealistically projected onto Obama. Rather, it arises because of specific pledges and commitments he made during the campaign, at his inauguration, and in the early days of his administration, many of which appear to have gone unfulfilled.

Examples of failure to deliver are numerous and include: the President flip-flopping on his prior agreement to the release of photos depicting the torture of detainees by Americans; supporting a bill which would have retroactively changed the Freedom of Information Act (FOIA) in order to prevent a legal ruling by the courts to compel the release of the photos; the verbatim invoking of the Bush argument that the concept of privileged presidential communications is a legitimate basis for denying public access to records of White House visitors maintained by the Secret Service; using absurd arguments to counter a lawsuit to force the disclosure of materials related to former Vice President Cheney’s interview with former Special Counsel Patrick Fitzgerald with respect to the criminal investigation into the Valerie Plame affair; the continued abuse of the state secrets privilege in pushing for the blanket dismissal of warrantless wiretapping and extraordinary rendition cases in the courts; and the list goes on. In many regards, except for the calendar, it seems that little has changed in the government's position with respect to secrecy regardless of whether Bush or Obama is the president.

It is in that context that CQ had a recent article regarding the above concerns as well as with other issues involving transparency and openness in government. In it, I am quoted as stating that:

Obama has taken an oath not to leave that office any weaker than he found it. ... During Bush, we saw the executive assert new unilateral authorities for the first time. Now that we have a new president, it’s unrealistic to expect him to walk away from those unilateral authorities.

The above quote deals with a larger concern with respect to the unchecked growth of unilateral executive authority in our government. Under our system of checks and balances, the President's authority to act unilaterally is defined by the willingness and the ability of Congress and the courts to constrain it. When the two co-equal branches of government fail to fulfill their responsibility to constrain unilateral acts by the President that are not based in either statute or the Constitution, they are, in effect, endorsing by omission the expansion of executive authority. The new ground staked out by any President under such circumstances becomes the de facto standard, not only for the immediate president but for all future presidents.

In this regard, after the failure of especially Congress to constrain unprecedented claims to unilateral executive authority by the Bush administration, it became irrelevant who won the election last November. Irrespective of whether it was McCain or Obama, on January 20th of this year, either one would have taken the following oath:

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Inherent in swearing to "faithfully execute the office of the President of the United States" is the promise to leave the office no weaker than when inherited. Thus, Congress' failure to act over the recent past leaves an enduring legacy -- one which will persist for generations to come unless both the legislature and the judiciary step up to their responsibility to check the abuses of executive authority our nation has endured, and continues to endure, to the detriment of our form of governance.

Update: In terms of walking back from prior commitments, contrast two comments from the Obama administration. First, as announced on the White House blog on January 21, 2009:

President Obama has committed to making his administration the most (emphasis added) open and transparent in history...".

Second, as quoted in the referenced CQ article:

White House officials shrug off such complaints. "I think the president underscored his commitment to transparency on his first full day in office,'"Press Secretary Robert Gibbs said at a regular White House briefing last month. "This is not (emphasis added) a contest between this administration or that administration or any administration."

Maybe it is me, but I find it somewhat difficult to lay claim to being the most open and transparent administration in history unless you compare this administration to other administrations. The idea that what I say is more important than what I do is all too familiar. Anyone recall "we don't torture"?

Our "Strategic" Communications Policy: Watch What I Say, Not What I Do

Walter Pincus writes in today's Washington Post about Congressional criticism of the Pentagon's "strategic" communications plans that are intended to assist our nation's military in winning over civilians while eroding support for adversaries in countries around the world.

The programs have grown too fast and are spread through the Defense Department budget in a way that hampers oversight, complain the House and Senate Armed Services committees and the House Appropriations Committee. They also suggest that the military is producing propaganda and other materials that mask U.S. government sponsorship and focus "far beyond a traditional military information operations."

...

The Pentagon spends nearly $1 billion a year on its strategic communications, its contribution to the "war of ideas" that until recent years had been the sole province of the State Department's public diplomacy effort. The wars in Iraq and Afghanistan have resulted in the military getting money more easily than the diplomatic corps, and the dominance of military personnel in those countries has led to an increasing military role in information operations.

...

Last week, the House Appropriations Committee, in approving the fiscal 2010 defense funding bill, said that it had identified 10 strategic communications programs that had grown from $9 million in fiscal 2005 to a "staggering $988 million request for fiscal 2010." The committee said many of the costlier programs appear as "alarmingly non-military propaganda, public relations, and behavioral modification messaging."

Several of the 10 classified programs "should be terminated immediately," said the panel, and it threatened to withhold funding for all 10 for next year until Defense Secretary Robert M. Gates reports to the committee about their "target audiences, goals, and measures of effectiveness." It also cut $500 million from the Pentagon's overall total for strategic communications.

The Senate Armed Services Committee, meanwhile, directed the Pentagon last week to come up with separate budget materials for fiscal 2011 "that clearly articulate and document Defense Department objectives and funding levels for strategic communications and public diplomacy." Without such documentation, the Senate panel said, it could not "oversee adequately the funding for the multitude of programs."

When I served in the Pentagon as the Deputy Assistant Secretary of Defense for Security and Information Operations, such programs were included in my portfolio. Back then, we advanced a concept known as "shaping the information environment." Upon reflection, to think that as a nation we could "shape the information environment" as opposed to being shaped by that environment ourselves was both arrogant and foolhardy. It's as if we believed we could repeal the law of gravity.

Unfortunately, based upon results on the ground today in Iraq, Afghanistan, and elsewhere, "strategic communications" continues to be primarily viewed by our government through the prism of "spinning" the news in order to show U.S. goals and objectives in a favorable light and those of our adversaries in a negative manner. However, much to my frustration, both then and now, such a "strategy" fails to recognize that the best strategic communication plan is often the simplest, i.e. "watch what we do, not what we (or the adversary) say."

Rather than continuing the condescending and irresponsible belief that we can spin the truth and with it the rest of the world, we should instead recognize how our actions play out in the "information environment" and conduct ourselves accordingly. Be it employment of our military, intelligence, diplomatic, economic, cultural, criminal justice, humanitarian or other national capabilities, we should first understand how their employment in specific situations will resound in the strategic information environment and, if they do not advance our overall national goals and objectives, then we should change our conduct rather than attempt to change how the world perceives our conduct. We have direct control over the former, almost none over the latter. It shouldn't cost us billions of wasted tax dollars as well as incalculable cost to our credibility and integrity as a nation to realize that.

NEXTGOV: Two Federal Groups Follow Different Paths to Transparency

See this NEXTGOV article about how two government groups conducting significant national security reviews followed different procedures for collecting outside input, illustrating that agencies, even those working in the same policy area, are inconsistent in their approaches to transparency initiatives.

Obama on Opaqueness

In an earlier post, I wrote about the Obama administration's embrace of executive power as an end in and of itself in legal arguments regarding the claimed need to maintain an unprecedented level of opaqueness in the White House. Specifically, the current Department of Justice continues to enshroud Secret Service White House visitor records with a veil of secrecy not seen until George W. Bush occupied the White House.

In the President's news conference last night, the Chicago Tribune's Christi Parson challenged Obama on this very point. Per the White House transcript:

Christi Parsons.
Q Thank you. During the campaign you promised that health care negotiations would take place on C-SPAN, and that hasn't happened. And your administration recently turned down a request from a watchdog group seeking a list of health care executives who have visited the White House to talk about health care reform. Also, the TARP inspector general recently said that your White House is withholding too much information on the bank bailouts. So my question for you is, are you fulfilling your promise of transparency in the White House?

THE PRESIDENT: Well, on the list of health care executives who've visited us, most of the time you guys have been in there taking pictures, so it hasn't been a secret. And my understanding is we just sent a letter out providing a full list of all the executives. But frankly these have mostly been at least photo sprays where you could see who was participating.

With respect to all the negotiations not being on C-SPAN, you will recall in this very room that our kickoff event was here on C-SPAN, and at a certain point you start getting into all kinds of different meetings -- Senate Finance is having a meeting, the House is having a meeting. If they wanted those to be on C-SPAN then I would welcome it. I don't think there are a lot of secrets going on in there.

And the last question with respect to TARP. Let me take a look at what exactly they say we have not provided. I think that we've provided much greater transparency than existed prior to our administration coming in. It is a big program. I don't know exactly what's been requested. I'll find out and I will have an answer for you.

In all honesty, Mr. President, you did not answer the question. An excellent means by which to demonstrate your promise of transparency in the White House would be to direct your Justice Department to repudiate the premise that, however dubious the claim of privileged presidential communications may be, at the very least it does not pertain to White House visitor records maintained by the Secret Service. Rolling back such a claim on the part of your predecessor would, at least, be a good start.

Say It Ain't So

Let's hope that this report by Bill Gertz of the Washington Times is not entirely accurate to the effect that the "Obama administration is putting the finishing touches on an executive order on classified information," a draft copy of which Gertz says he has obtained. Considering the fact that the administration has been accepting up until July 19, 2009, public comments with respect to recommended revisions to the order, it would be disappointing to know that a revised draft had been prepared for the president's consideration and was already being "leaked" by July 23rd. If true, it is difficult to imagine what effect, if any, the public comments had on the draft. The review process for potential revisions to this executive order will prove to be a true measure of the transparency, participation and collaboration promised by the President on January 21, 2009.

What Would Your Mama Think?

Updated Below:

Like all parents, while raising three children I looked for a myriad of means for them to recognize the most moral and ethical way in which to conduct themselves. Especially as they reached the age of adolescence, I tried to instill in them a simple rule of thumb for proper behavior as they increasingly carved out a life of their own -- specifically, I told them that as you find yourself about to do or say something, ask yourself: "what would my mother think of my conduct if she was sitting right here?"

During my 35 years of Federal service, I used a similar approach when dealing with my fellow public servants -- specifically, I would often ask them: "how would what you are saying or proposing look on the front page of the Washington Post?" (Keep in mind this was back in the pre "pay-to-play" days when the Washington Post engaged in real investigative journalism).

I raise these aphorisms in reaction to the lawsuit announced today by Citizens for Responsibility and Ethics in Washington (CREW) against the Department of Homeland Security based on the refusal of the Secret Service to provide CREW with White House visitor records under the Freedom of Information Act (FOIA). Specifically, CREW is seeking records of visits by top health care executives in an effort to learn the extent to which these industry players may have influenced the administration’s health care policy.

There are a multitude of reasons to be concerned with this refusal of the Obama administration to adhere to its own standards of transparency and openness in government (h/t Glenn Greenwald). However, the most significant grounds for extraordinary concern is the reference in the Secret Service's reply to CREW in which they expressed the concern of the Obama "Department of Justice that disclosing some or all of the requested records could reveal information protected by the presidential communications privilege," a verbatim defense of the Bush Justice Department in similar situations.

The concept of privileged presidential communications dates back to Nixon v. United States and Nixon v. Administrator of General Services. At the time, the Supreme Court grounded the privilege in the need for candor in executive branch decision-making and in the supremacy of each branch within its own assigned area of constitutional duties. It is noteworthy that these cases had as their roots demonstrably criminal conduct on the part of the President; conduct which ultimately required a pardon by the President's successor in order to avoid accountability in a court of law.

In a round about way, the District Court for the District of Columbia reinforced the concept of presidential communications privilege when the General Accounting Office (GAO) refused to appeal the District Court's decision in Walker v. Cheney in which the court claimed an inability to "step in to resolve disputes between the political branches over their respective Article I and Article II powers; this case, in which neither a House of Congress nor any congressional committee has issued a subpoena for the disputed information or authorized this suit, is not the setting for such unprecedented judicial action."

From my perspective, perhaps, in extraordinarily unusual and rare circumstances, a case may be made, at least theoretically, that our nation would be grievously harmed if the President's source of "candid" advice was to be revealed (e.g. if it turned out that Russian President Dmitriy Anatolyevich Medvedev was providing "candid" advice to President Obama as to how to deal with Russian Prime Minister Vladimir Putin). Other than that, I find it difficult to understand how it is in the public's interest to maintain opaqueness vs. transparency as to whom the President is receiving advice on subjects of grave importance to the nation's well-being.

Whether in dealing with energy issues in the Bush/Cheney administration or health care issues in the Obama administration, a consistent argument for both Bush and Obama appears to be the absolute defense of executive power as an end in and of itself. This notwithstanding the fact that the government's power, as we all know, emanates from the people -- and it is entrusted into the custody and care of our nation's leaders in order to promote the common good.

For neither the Bush/Cheney nor Obama administrations has ever provided an argument to the effect of how the common good is best served by keeping secret who visits the Oval Office in order to provide direct advice to the President on issues of grave national importance. Rather, the DoJ under both administrations consistently argues from the perspective of some abstract concept that the President or the Vice President would not be able to expect to receive candid advice from others unless they can assure them of complete confidentiality -- that others, to include the American people, would be denied for as long as conceivably possible knowledge as to what was discussed in the Oval Office.

From my perspective, as well as I believe that of history, if someone who has been invited into the Oval Office refuses to provide "candid" advice to the President unless assured that the American people will not learn of it -- that person probably should not be invited into the Oval Office in the first place. History is replete with examples of how our nation's blood and treasure has been squandered as a direct result of "candid" yet totally "bone-headed" advice. Even if one was to subscribe to the concept of presidential communications being privileged, it is just that, a privilege -- something which may exist in the abstract but does not need to be invoked at the drop of a hat. In fact, even if you believe that such a privilege exists, its reflexive invocation no matter the circumstances actually serves to diminish it.

Transparency and openness in government is not an abstract concept to be invoked when convenient. Rather, at it's root is the concept that our government will make better and more informed and more enlightened decisions when it knows that the decision-making process is transparent and visible to all Americans.

As such, Attorney General Holder, what in the world were you thinking when you allowed your Department to mindlessly invoke the concept of privileged presidential communications in this instance? Even if you believe you can invoke such a privilege, it does not follow that you should; especially when it is directly contrary to the expressed goals and aspirations of the President's administration. Whatever the courts may decide, shame on you!

And President Obama -- as long as you would not mind your own mother, if she was alive today, being aware of the advice and counsel you received in the Oval Office with respect to health care, why would you object to the American people being equally aware? If you would not want your mother to know, why did you allow those individuals into the people's Oval Office in the first place?

Update: The Obama administration released Wednesday night, just prior to the President's press conference on health care reform, a list of 15 health-care lobbyists and senior executives who have visited the White House to discuss health-care reform. CREW said in a statement that the administration's letter "in no way" fulfills the group's request, which was for the visitor logs themselves. "Releasing some records because it is politically expedient to do so is not transparency," the group said. I agree. Let the records speak for themselves. Furthermore, the Obama Justice Department must repudiate the premise that, however dubious the claim of privileged presidential communications may be, it does not pertain to White House visitor records maintained by the Secret Service.

Secrecy As An Enabler of Fraud

District court rulings unsealed yesterday serve as but the latest example of why those who reflexively genuflect at the altar of national security in the face of government assertions of classification or the state secrets privilege do so at their own peril. As reported in the Washington Post today:

A federal judge has ruled that government officials committed fraud while defending a lawsuit brought by a former DEA agent who accused a CIA operative of illegally bugging his home.

In rulings unsealed Monday, U.S. District Chief Judge Royce C. Lamberth wrote that he was considering sanctions against five current and former agency lawyers and officials, including former director George J. Tenet, for withholding key information about the operative's covert status.

The rulings, issued in recent months, highlighted what the judge called fraudulent work by CIA lawyers in defending a suit that Lamberth said had a lengthy and "twisted history." Brought in 1994 by DEA agent Richard A. Horn, the suit alleged that the CIA illegally bugged his residence in Rangoon, Burma, while he was serving in the country.

... the Justice Department, fought the suit and asked Lamberth to throw it out, invoking the state's secrets privilege. The government argued that the case involved information, including the operative's identity, that was too sensitive to be revealed in court.

Lamberth agreed and dismissed the suit in 2004.

...

Early last year, the Justice Department informed Lamberth that the CIA operative's cover had actually been lifted in 2002 but nobody told the judge or the appeals court about the change. A CIA lawyer learned about it in 2005 but did not alert the Justice Department, Lamberth or the appeals court, Lamberth wrote.

...

Lamberth called the decision to withhold the information a "fraud on the court."

"The CIA was well aware that the assertion of the state secrets privilege as to Brown was a key strategy in getting the case dismissed," Lamberth added.

In an order issued Monday, Lamberth ordered Yeates, Brown, Tenet and three current or former CIA lawyers -- John Rizzo, Robert J. Eatinger and A. John Radsan -- to file court documents explaining why he should not sanction them for the government's conduct. Attorneys for the officials and lawyers declined to comment or could not be reached. CIA spokesman George Little said the agency "takes seriously its obligations to U.S. courts."

Just one more example of how the Courts and the Congress should never accept on face value assertions by the executive that information must be withheld in the interest of national security.

Secrecy as an Enabler of Evil

When a society of men and women institute a government, that society invests its government, for the most part, with the sole legal and moral authority to use violence. Be it the police officer on the street shooting an armed and dangerous criminal, the courts imposing capital punishment on a convicted murderer, or a nation's military engaging in warfare, governments have a profound responsibility to its citizens to ensure that its use of violence is just. This includes ensuring that the threat upon which a government inflicts violence in behalf of its citizens is grave, and certain; that there is a reasonable basis to believe that all other non-violent means of addressing the threat are impractical or ineffective; there must be serious prospects of success by resorting to violence; and the use of violence must not produce evils and disorders graver than the evil at which the violence is directed.

In employing institutionalized violence, it is not unusual for government officials to be confronted with a rapidly changing environment which directly impacts upon the question of whether the use of violence is just or evil. For example, when confronted with split second decisions in the face of an uncertain or ill-defined threat, it is not unusual for police or military personnel not to be held criminally liable even if it turns out that the target of official violence was not a threat at all but in fact was an innocent person. However, in some cases, while a split-second decision to unleash violence on someone who proves innocent may be justifiable, instances in which the victim is subject to a fusillade of violence can result in the government official, be it a police officer or a military service member, being held accountable through the criminal justice system. In such instances, the focus is often not on the first shot that was fired, which may be justified, but on the last of dozens, if not hundreds of shots fired .

With that background, the Washington Post had a very disturbing article today about the infliction of violence by our government through torture. It discusses at great length the interrogation of Abu Zubaida, how he was waterboarded 83 times over four or five days, and how the on site officials in charge of his interrogation became convinced that he was cooperating and that there was unanimity within the team to that effect. The last section of the piece was entitled "One More Time," and states that:

CIA officials at the Counterterrorist Center were not convinced.

"Headquarters was sending daily harangues, cables, e-mails insisting that waterboarding continue for 30 days because another attack was believed to be imminent," the former official said. "Headquarters said it would be on the team's back if an attack happened. They said to the interrogation team, 'You've lost your spine.' "

...

"It was hard on them, ...," the former U.S. official said. "They are psychologists. They didn't enjoy this at all."

The two men threatened to quit if the waterboarding continued and insisted that officials from Langley come to Thailand to watch the procedure, the former official said.

After a CIA delegation arrived, Abu Zubaida was strapped down one more time. As water poured over his cloth-covered mouth, he gasped for breath. "They all watched, and then they all agreed to stop," the former official said.

A 2005 Justice Department memo released this year confirmed the visit. "These officials," the memo said, "reported that enhanced techniques were no longer needed."

Discussions of "enhanced interrogation techniques" in the abstract serve no useful purpose other than to obfuscate the fundamental values at stake. Rather, an informed discussion of all the circumstances surrounding the violence inflicted on detainees by our government in our name must take place -- a discussion that continues to be needlessly impaired by government secrecy and destruction of government records.

Furthermore, a case can be made that needless secrecy actually enabled the infliction of unjust violence by our government. When releasing the Army's revised interrogation techniques in September 2006, LTG John Kimmons, the then Army Deputy Chief of Staff for Intelligence acknowledged that the Army considered classifying some of the techniques in order to keep them out of the hands of the enemy. Instead, they opted for transparency, in part to be "as clear as we can be in the training of these techniques to our own soldiers, sailors, airmen and Marines." Similar transparency on the part of our national leaders to include former President Bush, former Vice-President Cheney, and others could have avoided the infliction of unjust government violence in the first place. Increased transparency today can facilitate a better understanding on the part of the American people as to the full extent of the violence unleashed on detainees in their name. It can also ensure that the same degree of accountability to which we subject a 19-year-old soldier is also applied to our national leaders at the highest levels.

One final point. One of the architects of the CIA interrogation program, who was actually a contractor to the CIA, issued a brief statement yesterday: "It may be easy for people who were not there and didn't feel the pressure of the threats to say how much better they could have done it. But they weren't there. We were and we did the best that we could."

In one regard, he is absolutely right. All of us are capable of committing unspeakable acts when under pressure. The military, for example, understands this all too well, which is why they instill discipline through training and effective leadership in our young men and women who are subject to the incredible pressures of combat. In the words of General Kimmons, "transparency" is a big part of that discipline and training, as is assurance of accountability should unjust violence be inflicted by any service member. When it comes to the inflection of torture by our Government, the "pressure" of government transparency could have precluded us as a nation from embarking upon the road to that evil in the first place.

Will Congress Simply Continue to Admire the Problem?

No matter the seriousness of the challenge, some politicians, members of the media, pundits, et. al. insist on reducing issues of grave importance to a "left vs. right" or "tough vs. soft on terrorism" didacticism. This week's announcement by the House Permanent Select Committee on Intelligence (HPSCI) that it has opened an investigation into whether the Bush administration violated the law by not notifying Congress of certain classified intelligence programs, to include an alleged program to assassinate key al-Qaeda leaders, is the latest example.

In many regards, the substance of the program is irrelevant. However, if the latest fuss is, in fact, about an alleged covert program to assassinate key al-Qaeda leaders in the aftermath of the attacks of September 11, 2001, once again you do have to wonder from whom the "covert" nature of the program was intended to keep its existence secret. Clearly not the al-Qaeda leaders who knew they would be hunted down, as Bush himself said, "dead or alive." That's why so many of them have chosen to live the rest of their lives holed up in a cave somewhere.

What is relevant is that much of the controversy is of Congress' own doing. In an interview with the Washington Post, Director of National Intelligence Dennis Blair said agency officials may not have been required to notify Congress about the program, though he believes they should have done so."It was a judgment call," Blair said in the Post interview. "We believe in erring on the side of working with the Hill as a partner."

Blair is absolutely right, it is a "judgment call" but only because Congress made it one by giving the executive a loophole through which anyone could drive a Mack truck, even one loaded with numerous CIA assassination teams. As I wrote about earlier, while the National Security Act of 1947, as amended, requires the President to make sure the intelligence committees “are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity,” the statute goes on to state that such briefings should be done “to the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters.” Imagine a law setting the speed limit on highways which requires drivers to travel 55 MPH "to the extent consistent with due regard" to other issues drivers regarded more important in their sole, unilateral judgment. While that may sound a lot like the Capital Beltway, it is also a law without meaning.

The above reference to "due regard" for protection of classified information is but one of many examples of Congress' reflexive deference to assertions of unilateral authority by the executive. Such authority to withhold information has never been explicitly conferred upon the President by either the Constitution or the Congress. Recent history is replete with examples of the executive abusing this authority, either through malice or incompetence. To allow the use of such unilateral authority to thwart oversight by the two co-equal branches of government, the Congress and the courts, is the antithesis of our constitutional form of government and its system of checks and balances.

Clearly, some of what our intelligence services do on behalf of our nation must be kept secret, not only from enemies but also, at times, from the American people. However, such secrecy does not have to run counter to our representative form of government. Our elected leaders in Congress serve as our proxy and one of their more critical roles is to exercise oversight over what the executive does in our name.

Ensuring timely and full Congressional notification not only preserves the basic checks and balance principles of the U.S. Constitution, but it can also enhance national security as well. So far this decade, much blood and treasure, belonging to Americans and other nations alike, have been squandered as a direct result of faulty decisions by our national leaders. Excessive government secrecy has significantly contributed to flawed national security policies. While Congressional oversight does not guarantee more competent and effective national security decisions, full and timely notification of Congress at least gives Americans a fighting chance that the full capabilities of our government are being applied to issues of critical importance to our nation and the world.

Instead of just admiring the problem, Congress must take action now. At the very least, they should remove from the governing statute the "judgment" that Blair referred to in his interview and no longer allow any administration to use the "due regard" for the protection of classified information as an excuse not to notify Congress of significant intelligence activities. While classification remains a critical national security tool, it has all too often been abused by the executive. Congress should never "institutionalize" the ability of any administration to abuse secrecy and as a result undermine our constitutional form of government.

Updated: Fixed a few (hopefully all) typos -- h/t behindthefall at emptywheel.

Major Compromise of National Security Information

Government Routinely Allows Accused Terrorist Access to Classified Information

Zayn al Abidin Muhammad Husayn, aka Abu Zabaydah, is currently in U.S. custody at the detention facility at Guantanamo Bay, Cuba. The CIA has acknowledged waterboarding Abu Zabaydah in secret interrogations while his attorneys claim that he is insane.

Walter Pincus had an interesting piece in the Washington Post today about how the U.S. government has insisted that the words and writings of Abu Zubaydah are, in and of themselves, classified. Pincus' article is based upon court filings by Abu Zabaydah's lawyers, who, as summarized by Pincus:

"...wrote that the government was classifying what the prisoner was telling them, what he wrote in his diaries before being captured and during his seven years of captivity in Cuba, and even information that they had learned from public documents that he could not possibly know. Many sections of that motion itself ... are redacted in the recently declassified public version."

It turns out that the Government has adopted a position that could have only been developed by a team of attorneys consisting of Lewis Carroll, George Orwell, and Franz Kafka. In contrast to the cogent points outlined by Abu Zabaydah's lawyers in their court filing, the Government has adopted the position that Abu Zabaydah's thoughts are, in essence, "born classified." As such, by continuing to allow Abu Zabaydah to think and write, the Government is, by virtue of their own position, allowing an accused terrorist to have continuing and uninterrupted access to classified information, not withstanding the fact that by the Government's own rules, Abu Zabaydah is an unauthorized person. Per Executive Order 12958, as amended, Abu Zabaydah is not an unauthorized person for access to his own thoughts in that he does not have a current security clearance, nor has he executed an appropriate non-disclosure agreement. Furthermore, while the Government has apparently already determined that Abu Zabaydah's attorneys do not have a "need-to-know" for access to his thoughts and writings, the issue apparently remains as to whether or not Abu Zabaydah has a "need-to-know" for his own thoughts.

Just when you thought that the Government's contempt for the classification system could get no worse, they always seem to find a way to make a mockery of an extraordinarily critical national security tool that is essential for our nation's well-being; the very same system that our country's young military and intelligence service members who put themselves everyday in harm's way depend upon for their very lives.

h/t bmaz at emptywheel.firedoglake.com

btw -- I am on the road this week and thus postings may be intermittent.

Classification and the Constitution

Updated Below

For my entire Federal career, to include the last five when I was responsible to oversee the Executive branch's classification system, I firmly believed that the President's authority to withhold the disclosure of information in the interest of national security was the President's absolute authority -- rooted in his Article II constitutional authority as commander-in-chief of the armed forces and as chief executive responsible for foreign affairs. I was wrong -- seriously wrong. In fact, such a belief constitutes a serious threat to our constitutional form of government and significantly undermines its system of checks and balances.

Unfortunately, I have not been alone in my mistaken belief. At various times, all three co-equal branches of government have also agreed that this was an implicit yet absolute authority of the President.

For example, while Congress has never explicitly made a grant to the executive of such authority, a number of statutes providing for disclosure of government information exempt national security secrets from disclosure (for example, Freedom of Information Act; Government in the Sunshine Act; Privacy Act; Federal Advisory Committee Act; Administrative Procedures Act; National Environmental Policy Act; and Paperwork Reduction Act. Furthermore, while the National Security Act of 1947, as amended, requires the President to make sure the intelligence committees “are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity,” the statute goes on to state that such briefings should be done “to the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters.”

The Supreme Court, too has recognized the President's authority in this area. Dating back to the time of Lincoln, in TOTTEN V. UNITED STATES, the Court found that the President may employ secret agents to enter the enemy’s lines and obtain information as to its strength, resources, and movements. In UNITED STATES V. REYNOLDS, the Supreme Court found that when a claim of privilege against revealing military secrets is invoked, the courts must decide whether the occasion for invoking the privilege is appropriate, and yet do so without jeopardizing the security which the privilege was meant to protect. Also, in DEPARTMENT OF NAVY v. EGAN, the Supreme Court stated that the President is the "Commander in Chief of the Army and Navy of the United States." His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant. The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief.

Yet, the strength of our constitutional form of government lies into its system of checks and balances. James Madison wrote that the three branches "should not be so far separated as to have no constitutional control over each other." The system of checks and balances is designed to allow each branch to restrain abuse by another branch.

The other day, an unclassified report was released outlining what is quite possibly the worst abuse ever of the President's classification authority. The report by the Inspectors General of five intelligence agencies outlines the extraordinary secrecy surrounding the NSA warrantless surveillance program. This report, taken with other previously released information makes, it very clear that former President Bush and former Vice President Cheney utilized classification authority in order to conceal and cover-up violations of law -- an abuse which our system of checks and balances is intended to preclude.

This much is for certain:

1. The President's program violated the provisions of the Foreign Intelligence Surveillance Act (FISA).

2. The then President and Vice-President knew that this program violated the law. This is readily apparent through Jack Goldsmith, the former head of the Office of Legal Counsel (OLC) in the Department of Justice. Goldsmith wrote in his 2007 book The Terror Presidency that senior officials within the government “blew through FISA in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations.” Goldsmith further recounted one of his first experiences with such extraordinary concealment in late 2003, when, as he recalls, David Addington of the Office of the Vice President (OVP) angrily denied a request by the National Security Agency’s (NSA) Inspector General to see a copy of OLC’s legal analysis supporting the warrentless surveillance program. Goldsmith wrote: “Before I arrived in OLC, not even NSA lawyers were allowed to see the Justice Department’s legal analysis of what NSA was doing." It is important to remember that the NSA lawyers already had knowledge of the actual details of the program, the very information which would be of interest to an enemy. However, they were being denied access to the pure legal analysis of the program, information that would be of no interest or value to an enemy whatsoever.

3. Bush's actions clearly indicate that he was not interested in a genuine legal analysis of the warrantless surveillance program. As indicated in the IGs' report, "the President made the decision to 'read-in' all non-operational persons, including DoJ officials." As a direct result, a hand-picked lawyer, John Yoo, gave the President a piece of paper which was deficient on almost every level except that it gave the President what he wanted -- legal cover. The secrecy of the program prevented any vetting of Yoo's legal work, to include by the head of the OLC himself, Yoo's nominal supervisor.

4. The secrecy of the program, in addition to undermining our constitutional form of government, caused significant harm to national security as well. The report concluded that "extraordinary and inappropriate" secrecy about the warrantless eavesdropping program undermined its effectiveness as a terrorism-fighting tool.

Now, imagine if a President was perceived to abuse his explicit constitutional authority to grant pardons. What would Congress do? Of course, we saw what Congress would do in its investigation into the pardons granted by Clinton to Marc Rich and others.

Now, imagine if a President was to engage in a cover-up of the attempt to install a single, illegal, warrantless wiretap. What would Congress do? Of course, as we saw in Watergate, the Congress would aggressively investigate and move to impeach the President as they did in the case of Nixon.

Now, imaging if a President was to attempt to cover-up the illegal surveillance of almost any American's communications. What would Congress do? So far, apparently nothing.

What Congress can and should do is exert its rightful role in restraining abuses by the executive with respect to exercise of authority to withhold the disclosure of information, ostensibly in the interest of national security. Congress can begin by implementing the long dormant principal recommendation of the 1997 Report of the Commission on Protecting and Reducing Government Secrecy (also known as the Moynihan Commission). Specifically, this Report recommended that "to improve the functioning of the secrecy system and the implementation of established rules, we recommend a statute that sets forth ... what may be declared secret."

It is essential that Congress (and the Courts) take action now to preclude the very open-ended, non-circumscribed, executive authority that the Constitution’s framers sought to avoid in constructing a system of checks and balances. As evidenced by this extraordinary abuse of classification authority by a President himself, the time to take such action is NOW!

Update: Some believe that the point made in item 1, above, i.e. that President Bush violated the law, is debatable. I want to point out that this is not my opinion, but rather the legal finding of Bush's attorney general, John Ashcroft, his deputy attorney general, James Comey, his FBI director, Robert Mueller, and other senior government officials who all threatened to resign in the face of continued law-breaking by the Bush administration. It is my opinion, and many others, that, as indicated in items 2 and 3 above, this law-breaking was deliberate and with malice and forethought -- that there was clear intent to violate the law.

Liars, Damned Liars, and Classified Sources

One of the greatest absolutes in the world of government secrecy is the need to protect intelligence sources, especially human sources. The challenges to recruiting such sources are immense; especially when one recognizes that in essence we are asking individuals to betray confidences, perhaps even betray their country or other recipients of their loyalty, in order to assist our nation. Oftentimes, such acts by human intelligence sources not only place the source in physical jeopardy, but the source’s family and associates as well. As difficult as it is to recruit individuals to provide such assistance to our country, our intelligence agencies fear that it would be near impossible if we could not assure such sources complete and total confidentiality, not only now, but also for decades if not generations to come. Human sources are the lifeblood of an intelligence service and they believe that we are under an almost sacred obligation to go to great lengths to protect their identities. As any reporter knows, if we fail to protect today’s human sources, it becomes increasingly difficult to recruit the human sources for tomorrow.

However, as we increasingly see in the media, granting confidentiality to sources oftentimes results in the media being manipulated by the source to the detriment of the media’s credibility. In order to avoid manipulation and to preserve their credibility, most professional media outlets will insist that anonymity be granted to sources only as the exception. For example, more honored in the breach than in practice, the New York Times policy says anonymous sources should be used only as “a last resort when the story is of compelling public interest and the information is not available any other way.”

In the world of intelligence, the reflexive rule is to protect the identity of sources regardless. Strangely, many policy-makers, members of the media, and the general public automatically believe that if information comes from a “highly classified source,” it must be true. This often leads to disastrous consequences as evidenced by the lead up to the Iraq War. It is well known now that when Secretary of State Colin Powell spoke to the U.N. Security Council in February 2003 just before the war, the most impressive part of his presentation which talked about eyewitness accounts of mobile biological labs and an accident that killed a dozen people was a fraud, based upon debriefings by German intelligence officials of a human source aptly codenamed “CURVEBALL.” What is truly noteworthy, however, is that at the time there was ample, yet classified, information which pointed to the existence of doubts about CURVEBALL’S authenticity before his charges were featured in the Bush administration’s public claims about Iraq. As such, exceptionally grave damage to our national security was actually caused, not prevented, by classification.

Unfortunately, the routine classification of intelligence sources continues to result in exceptionally grave damage to our national security. For example, the Senate is so concerned that anti-American sentiment would be inflamed by disclosing pictures of Americans torturing detainees that they passed a bill to retroactively change the Freedom of Information Act (FOIA) in order to prevent a legal ruling by the courts to compel the release of the photos. Yet, at the same time they have proven themselves totally incapable of diffusing one of the most potent sources of anti-American sentiment throughout the world, specifically the closing of the detention facility at Guantanamo Bay, Cuba by the end of the year. This inaction is in large part driven by assertions of both the past and current administrations that Guantanamo houses “the worst of the worst,” individuals who, while not convicted of any crimes, are nonetheless "terrorists" that cannot even be incarcerated in this country in maximum security prisons, let alone set free. And the basis for these repeated assertions are, of course, classified, often times based solely upon a single human intelligence source.

That’s not too say that withheld information cannot be selectively leaked in order to back up these assertions. For example, former Vice President Cheney has repeatedly pointed to a New York Times article which, as it turns out, falsely stated that about one in seven of the 534 prisoners already transferred abroad from the detention center in Guantanamo, are engaged in terrorism or militant activity.

Thus, lies are introduced into the public discourse; lies which soon become the conventional wisdom; lies which paralyze our leaders in taking real action to close Guantanamo and thus accomplish the single greatest step to reduce anti-American sentiment in the world; lies, which it turns out, that are ultimately based upon highly classified intelligence sources.

This week, McClatchy Newspapers published an excellent piece by Nancy Youssef which highlights in very human terms the consequences of the reflexive classification and resulting deference to classified intelligence sources. She writes of Haji Sahib Rohullah Wakil, one of the 74 former Guantanamo Bay detainees who the Pentagon asserts have returned to or are suspected of returning to terrorism after their release from the island prison camp. She highlights how Wakil “spends his days going from one high-level official meeting to another with the swagger of a tribal elder, advocating for the needs of Kunar province, his home region. Each encounter — with President Hamid Karzai, with Karzai's chief of staff or with one of Afghanistan's other presidential candidates — begins the same: They thank him for his honorable service to the people of Kunar”.

McClathcy Newspapers was able to discover that Wakil, far from being in hiding, operates openly among officials of Afghanistan's U.S.-allied government. As the article points out, Wakil's case adds more questions about just what's meant by "returning to terrorism." It goes on to state that:

Wakil, who's now 49, represented Kunar province in the grand assembly that helped name Karzai president in June 2002. Wakil met with American officials several times after they descended on Afghanistan in the wake of the Sept. 11, 2001, terrorist attacks.

At the time he was well-known as an anti-Taliban commander and was considered a potential candidate to serve as Kunar's governor.

Wakil traces his detention to an August 2002 meeting he had with an American commander after U.S. troops shot a resident at a bazaar. Wakil said he went to the U.S. base in hopes of defusing tensions.

"'Don't take any direct action here. Coordinate your actions with the local forces. You don't understand the local security.' This is what I advised him," Wakil said. "I talked to the Americans as an elder of the area. 'If there is anything I can do, please let me know.'"

At the gate, as he was leaving the meeting, he and nearly a dozen others were detained and taken to Bagram air field. Within days, only he and Sabar Lal, his military commander, remained in custody. After seven months, he and Lal were transferred to Guantanamo, where for the next six years the tribal leader was known as detainee 798. Lal was released in October 2007, Wakil in April 2008.

"I told them I am a supporter of this government. Why am I detained?" Wakil said. "I said everyone in my province will fight for my release all the way up to the president. They told me no one will fight for you because you are a bad person."

His uncle had formed Jama'at-ud-Da'wah Pakistan, a Sunni Muslim-based group created in the 1980s to fight the Soviet occupation of Afghanistan. The State Department considered it a terrorist organization. While Wakil admits that he was a member of the group, he said he was never a fighter, that his group promoted a certain thread of Islam, not terrorism.

According to Defense Department documents from Wakil's Combatant Status Review Board hearing at Guantanamo, the United States charged that Wakil helped members of al Qaida escape from Kunar into neighboring Pakistan. The U.S. also charged that he obtained weapons that were used in a rocket attack on the main military base in Kunar.

The charges, the documents say, were based on a source.

In response, Wakil told the review panel he thought that a political enemy, whom he didn't identify, had set him up. He denied working on behalf of al Qaida; instead, he said he suspected that an al Qaida operative had assassinated his uncle.

Mohammed Roze, who directs the Afghan government's peace and reconciliation commission in Kunar, said he thought that Malik Zarin, who was then the head of the rival Mushwani tribe, had turned Wakil in because the Mushwani tribe opposed a poppy-eradication program that Wakil had begun in Kunar around the time of his arrest. Zarin had built close ties with American forces in Kunar, Roze said. He said that Wakil was never a threat to American troops.

Our national leaders and the American people need to have an informed discourse and have it now in order to resolve one of the greatest sources of continued anti-American sentiment, the status of the detention facility at Guantanamo Bay. To have such a discussion, it must be based upon substantive information such as that contained in the McClathcy article. It cannot be based upon simple assertions. Indiscriminate classification of sources will continue to cause exceptionally grave damage to our national security. Reform in the area of the classification of intelligence sources must be an essential element of any revisions to how the Executive branch classifies information.