Updated Below:
From yesterday's Fox News Sunday interview:
CHENEY: Well, you think, for example, in the intelligence arena. We ask those people to do some very difficult things. ... They do so at the direction of the president, and they do so with the -- in this case, we had specific legal authority from the Justice Department. And if they are now going to be subject to being investigated and prosecuted by the next administration, nobody's going to sign up for those kinds of missions.
In other words, if there is no investigation, people will be willing to sign up to torture their fellow human beings when directed by some future president. Seems, more than anything else, that is the best rationale for investigations -- especially of those who gave the direction in the first place.
Furthermore, it is refreshing to see so much concern for morale at the CIA. It is too bad that this concern for morale was not present when the direction to torture was given in the first place. The demoralizing effect that our nation's engagement in torture has had on the outstanding men and women of our intelligence services, as well as of those in the military services, is incalculable. It's one thing to ask our children to be willing to sacrifice their lives for their nation. It is quite another to ask then to shed their humanity.
Update: So far in the 21st century, the United States has had three presidential administrations. Only one of them presided over the biggest national security failure and most horrific attack on the United States in the history of the republic. That anyone from that administration has the audacity to criticize the national security policies of any other administration -- let alone offer himself as some sort of "national security expert" -- is beyond the pale.
Furthermore, while investigations into past abuses may be traumatic for the nation, to assign responsibility for that trauma to those who are attempting to apply the rule of law as opposed to those who so wantonly and eagerly disregarded the rule of law in the first place is unconscionable. There would be no need for such investigations if the prior administration had not engaged in widespread and institutionalized lawbreaking in the first place.
In addition, the lack of any remorse or misgiving or any sense of responsibility on Cheney's part is chilling and almost pathological. Everything the past administration did was perfect -- absolutely no mistakes notwithstanding the biggest national security failure ever and the totally inept response, which has led to an almost endless sacrifice of additional American blood and treasure. Even the temperature of the water used to douse naked detainees was just right (41 degrees), not too warm, not too cold. There is absolutely no recognition that his endless defense of his administration's flawed detention policies continues to serve as one of the most effective recruitment tool for future extremists.
Nonetheless, to return to the overall objective of this blog, the torture legacy of the prior administration is a compelling example of the corrosive effect that the abuse of official government secrecy has on our nation and its well-being. It has allowed the discourse to seamlessly shift from "We don't torture" to, "Yes, we did torture and we are proud of it." There is no way these extraordinarily flawed, ineffective, illegal and immoral practices would have been crafted and implemented in the first place except for the cloak of official secrecy.
Monday, August 31, 2009
Saturday, August 29, 2009
The Devil and the Law
A leading moral spokesperson will apparently use his Sunday morning pulpit to highlight the depravity of the current administration, accuse it of committing "outrageous" acts, and condemn its failure do to all that is possible to save human lives (American ones that is).
Per yesterday's McClathchy Newspaper article based upon transcripts of an interview with Chris Wallace of "Fox New Sunday":
CIA interrogators were justified in exceeding even the broad authorizations the Justice Department gave them to handle terrorist suspects, former Vice President Dick Cheney said in an interview for broadcast Sunday, suggesting that any aggressive tactic was justified in the goal of preventing another terrorist attack.
Thus, our own former Vice President comes close, if not actually, to admitting his own law breaking when he so brazenly displays his disdain for the rule of law. It wasn't enough that hand-picked lawyers provided incompetent legal counsel clearly intended to serve as cover for official lawbreaking. According to Mr. Cheney, CIA interrogators where justified in exceeding even those sham legal guidelines -- that there was, in fact, no limit to what our government can inflict upon human beings if the goal is to prevent another terrorist attack. In essence, Cheney is clearly stating that CIA interrogators where not only justified in threatening to blow detainee brains out, torture them with drills, rape their mothers, and murder their children, but that they would also have been justified in actually doing all those things, and more, as long as the goal was preventing another terrorist attack.
In a surprise move, apparently Chris Wallace at one point in the interview challenged Cheney on this point. In a first ever exclusive, this blog has a video clip below of Wallace confronting Cheney (although he curiously calls him "Roper" -- must be a nickname -- hopefully its not based on one of those "enhanced" interrogation techniques).
Per yesterday's McClathchy Newspaper article based upon transcripts of an interview with Chris Wallace of "Fox New Sunday":
CIA interrogators were justified in exceeding even the broad authorizations the Justice Department gave them to handle terrorist suspects, former Vice President Dick Cheney said in an interview for broadcast Sunday, suggesting that any aggressive tactic was justified in the goal of preventing another terrorist attack.
Thus, our own former Vice President comes close, if not actually, to admitting his own law breaking when he so brazenly displays his disdain for the rule of law. It wasn't enough that hand-picked lawyers provided incompetent legal counsel clearly intended to serve as cover for official lawbreaking. According to Mr. Cheney, CIA interrogators where justified in exceeding even those sham legal guidelines -- that there was, in fact, no limit to what our government can inflict upon human beings if the goal is to prevent another terrorist attack. In essence, Cheney is clearly stating that CIA interrogators where not only justified in threatening to blow detainee brains out, torture them with drills, rape their mothers, and murder their children, but that they would also have been justified in actually doing all those things, and more, as long as the goal was preventing another terrorist attack.
In a surprise move, apparently Chris Wallace at one point in the interview challenged Cheney on this point. In a first ever exclusive, this blog has a video clip below of Wallace confronting Cheney (although he curiously calls him "Roper" -- must be a nickname -- hopefully its not based on one of those "enhanced" interrogation techniques).
Wednesday, August 26, 2009
"If Only You Knew What I Knew, You'd Realize How Foolish You Are"
It comes down to this -- 18 watts vs 17; 79 decibels vs. 80; 41 degrees water vs 40; 20 minutes vs 21. Thus was the essence of today's chilling NY Times article which intended to portray what it characterized as the "overwhelming control exercised from C.I.A. headquarters and the Department of Justice — control Bush administration officials say was intended to ensure that the program was safe and legal". Instead, it depicted the banality of a bureaucracy allowing the corrupting influence of official secrecy to shield it from the overwhelming common sense realization that our government had embarked upon a descent into an evil that is the antithesis of every ideal for which we believe this nation stands. Thus, when our nation's prior President stated that "We do not torture," what he was really saying was: "we will douse a prisoner with 41-degree water but for only 20 minutes at a stretch, not 40 - degree water for 21 minutes -- that would be torture."
How does this happen -- how do we as a nation depart so far from the ideals that we teach our children as to that for which our nation stands? How is it that, as described by Glenn Greenwald, as a nation we take helpless detainees in our custody (not that it matters, but many of whom subsequently prove to be innocent of any wrongdoing) and (a) threaten to blow their brains out, torture them with drills, rape their mothers, and murder their children; (b) choke them until they pass out; (c) pour water down their throats to drown them; (d) hang them by their arms until their shoulders are dislocated; (e) blow smoke in their face until they vomit; (f) put them in diapers, douse them with cold water, and leave them on a concrete floor to induce hypothermia; and (g) beat them with the butt of a rifle -- all things that we have always condemned as "torture" and which our laws explicitly criminalize as felonies? I cannot provide a more perfect example of the corrupting influence of official secrecy on the national security decision-making process. I cannot imagine any scenario whereby the above actions would have been adopted as the official policy of our government if they had been subject to public debate, even if that public debate was to occur on September 12, 2001.
In fact, I was in the Pentagon on September 11, 2001, approximately 100 yards from the impact of American Airlines Flight 77. I knew a number of the victims of that terrorist attack to include one who was on the flight on official business, only to die when it crashed into the building in which he worked everyday. I specifically recall returning home that evening and, standing on the back deck of my home with my wife, commenting to her that how we reacted to that day's events will forever define us as a nation. Little did I, or anyone else, recognize then the completely "un-American" manner in which our government would eventually react.
Which brings me to a common phenomenon I encountered throughout my years immersed in official government secrecy. Inevitably, I would always encounter an individual who would have considerably greater access to classified information than I did (especially highly compartmentalized information) and refuse to engage in the substantive merits of a particular argument. Instead, he or she would state, in essence, that "if only you knew what I did you would realize how foolish you are in believing what you think you know."
As we have seen over the past several days, the phenomena of "I know something you don't know" is continually exploited by many of our government leaders. For years, former Vice President Cheney has stated that torture (i.e. "enhanced interrogation techniques") has produced valuable intelligence that saved American lives. In the first place, this is an exceedingly vile argument to make, unworthy of a response from any decent human-being. Nonetheless, the media has embraced this as a typical "he said v. he said" argument, without recognizing that it is an aberrant argument without factual basis.
For the past several months, Cheney has demanded the declassification of a number of documents which would prove that torture works and saves American lives. Two of those documents were released on Monday by the Central Intelligence Agency. After they were released, even Cheney recognized that he could no longer make the claims that he did. Instead, after the documents were released, he stated:
The documents released Monday clearly demonstrate that the individuals subjected to Enhanced Interrogation Techniques provided the bulk of intelligence we gained about alQaeda.
Based upon this statement, a number of media outlets promptly reported that the release of these documents proved that torture works and that it saved American lives. However, even in his markedly revised claim, Cheney himself no longer made such an assertion. Instead, he clearly stated that the bulk of intelligence came from detainees subjected to "enhanced interrogation techniques;" a very different statement than that it was the "enhanced interrogation techniques" that produced the bulk of the intelligence.
The above highlights how difficult it is to have an informed discourse as to the proper policy our nation should undertake if only a small, incestuous clique has access to the available "facts." None of the "facts" recently declassified and released to date is of use to our nation's adversaries and thus never should have been subject to classification in the first place. Instead, they have now been reduced to "political fodder" in which the "facts" are conveniently disregarded.
How does this happen -- how do we as a nation depart so far from the ideals that we teach our children as to that for which our nation stands? How is it that, as described by Glenn Greenwald, as a nation we take helpless detainees in our custody (not that it matters, but many of whom subsequently prove to be innocent of any wrongdoing) and (a) threaten to blow their brains out, torture them with drills, rape their mothers, and murder their children; (b) choke them until they pass out; (c) pour water down their throats to drown them; (d) hang them by their arms until their shoulders are dislocated; (e) blow smoke in their face until they vomit; (f) put them in diapers, douse them with cold water, and leave them on a concrete floor to induce hypothermia; and (g) beat them with the butt of a rifle -- all things that we have always condemned as "torture" and which our laws explicitly criminalize as felonies? I cannot provide a more perfect example of the corrupting influence of official secrecy on the national security decision-making process. I cannot imagine any scenario whereby the above actions would have been adopted as the official policy of our government if they had been subject to public debate, even if that public debate was to occur on September 12, 2001.
In fact, I was in the Pentagon on September 11, 2001, approximately 100 yards from the impact of American Airlines Flight 77. I knew a number of the victims of that terrorist attack to include one who was on the flight on official business, only to die when it crashed into the building in which he worked everyday. I specifically recall returning home that evening and, standing on the back deck of my home with my wife, commenting to her that how we reacted to that day's events will forever define us as a nation. Little did I, or anyone else, recognize then the completely "un-American" manner in which our government would eventually react.
Which brings me to a common phenomenon I encountered throughout my years immersed in official government secrecy. Inevitably, I would always encounter an individual who would have considerably greater access to classified information than I did (especially highly compartmentalized information) and refuse to engage in the substantive merits of a particular argument. Instead, he or she would state, in essence, that "if only you knew what I did you would realize how foolish you are in believing what you think you know."
As we have seen over the past several days, the phenomena of "I know something you don't know" is continually exploited by many of our government leaders. For years, former Vice President Cheney has stated that torture (i.e. "enhanced interrogation techniques") has produced valuable intelligence that saved American lives. In the first place, this is an exceedingly vile argument to make, unworthy of a response from any decent human-being. Nonetheless, the media has embraced this as a typical "he said v. he said" argument, without recognizing that it is an aberrant argument without factual basis.
For the past several months, Cheney has demanded the declassification of a number of documents which would prove that torture works and saves American lives. Two of those documents were released on Monday by the Central Intelligence Agency. After they were released, even Cheney recognized that he could no longer make the claims that he did. Instead, after the documents were released, he stated:
The documents released Monday clearly demonstrate that the individuals subjected to Enhanced Interrogation Techniques provided the bulk of intelligence we gained about alQaeda.
Based upon this statement, a number of media outlets promptly reported that the release of these documents proved that torture works and that it saved American lives. However, even in his markedly revised claim, Cheney himself no longer made such an assertion. Instead, he clearly stated that the bulk of intelligence came from detainees subjected to "enhanced interrogation techniques;" a very different statement than that it was the "enhanced interrogation techniques" that produced the bulk of the intelligence.
The above highlights how difficult it is to have an informed discourse as to the proper policy our nation should undertake if only a small, incestuous clique has access to the available "facts." None of the "facts" recently declassified and released to date is of use to our nation's adversaries and thus never should have been subject to classification in the first place. Instead, they have now been reduced to "political fodder" in which the "facts" are conveniently disregarded.
Tuesday, August 25, 2009
In Defense of the Current Targets of DoJ's Misguided Interrogation Abuse Investigation
Five days after 9/11, Vice President Cheney appeared on television and talked about fighting terrorism, stating: "…We have to work the dark side, if you will. Spend time in the shadows of the intelligence world. …"
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From the 2002 trial of John Walker Lindh -- the American captured in Mazar-e-Sharif in 2001 fighting for the Taliban -- Donald Rumsfeld's general counsel, William J. Haynes II, is said to have advised the commander of U.S. forces in Mazar to "take the gloves off" when interrogating him.
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Per today's Washington Post: A partially declassified CIA report released Monday by the Obama administration describes the early implementation of the agency's interrogation program in 2002 and 2003 as ad hoc and poorly supervised, leading to the use of "unauthorized, improvised, inhumane and undocumented" techniques.
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From the 2002 trial of John Walker Lindh -- the American captured in Mazar-e-Sharif in 2001 fighting for the Taliban -- Donald Rumsfeld's general counsel, William J. Haynes II, is said to have advised the commander of U.S. forces in Mazar to "take the gloves off" when interrogating him.
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Per today's Washington Post: A partially declassified CIA report released Monday by the Obama administration describes the early implementation of the agency's interrogation program in 2002 and 2003 as ad hoc and poorly supervised, leading to the use of "unauthorized, improvised, inhumane and undocumented" techniques.
Interrogators lifted one detainee off the floor by his arms while they were bound behind his back with a belt. Another interrogator used a stiff brush to clean a detainee, scrubbing so roughly that his legs were raw with abrasions. And another squeezed a detainee's neck at his carotid artery until he began to pass out.
Authorized techniques such as waterboarding were applied in a manner that exceeded the language of Justice Department memos that authorized their use. Interrogators "continuously applied large volumes of water," explaining afterward that they needed to make the experience "more poignant and convincing," the report said.
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For the moment, let's leave the "Dark Side" in the shadow of government secrecy and instead focus on the legitimate and legal use of brutal violence by our government -- i.e. sending 19-year-old soldiers into combat in order to kill fellow human beings. Imagine a superior officer who went out and hired a contractor took a raw recruit, gave him an M-16 rifle, and set him loose in the streets of Iraq or Afghanistan with instructions to "kill the bad guys" but without any training or supervision. The results would be inevitable and clear for all to see -- indiscriminate killing amounting to murder. The superior officer would personally be held criminally liable for the actions of the untrained, unsupervised contractor raw recruit he unleashed on the innocent and guilty alike.
Our military recognizes that when we ask our children and our fellow citizens' children to kill on our behalf, we must first afford them to intense training and discipline. Anyone who has been in combat recognizes that it takes tremendous discipline to adhere to the rules of engagement when others are trying to kill you right then and there. The noise, the confusion, the rush of adrenaline all make it essential that a soldier's self-discipline become innate and control his or her conduct in action almost without thinking. This only occurs as the result of intense training and a system of enforceable discipline. Our young soldiers understand, as do their superiors, that they will be held accountable if they violate their training and engage in undisciplined violence.
Furthermore, notwithstanding the brutality of the violence our military unleashes in our name, they do it for the most part in complete transparency. Occasionally, individuals, to include commanders, will fall back into secrecy in order to cover-up misdeeds (i.e. the case of Pat Tillman or instances of mistaken aerial bombing of civilian victims) but invariably, the military always comes around and insists on complete transparency and accountability. They recognize that it is only through such transparency and accountability that we can continue to ask our young soldiers to kill their fellow human beings on our behalf, yet retain their humanity.
Contrast that with the "Dark Side" which was crafted and/or approved by our most senior leaders in our government to include the former President and Vice-President. They asked both government and contractor interrogators to "shed a little bit of their humanity" and engage in torture. However, there is no such thing as "shedding a little bit of your humanity." Once you descend down that road, the inevitable consequences should be plain for all to see, especially when the shedding of humanity occurs within an undisciplined world with no effective training and supervision. The only potentially basis for shock would be if such a process did not inevitably lead to the torture, abuse, and even murder of detainees.
Our government leaders deliberately chose to craft and implement the process for handling and interrogating detainees in official secrecy, not for the purpose of depriving valuable information to our adversaries but solely to escape the transparency which they absolutely know would have precluded them from engaging in such conduct in the first place.
I am reminded of an article which appeared in the Los Angeles Times in 2004 entitled: "AbuGhraib Intelligence Soldier Describes Iraq Abuse in Detail ." In the article, one military intelligence soldier related how, after a session in which abuse was inflicted upon some detainees, as he got ready to leave the cell block amid anguished please for help from the prisoners, another soldier looked at him and asked, "Izzy, you're not going to tell anybody, are you?" The use of official secrecy by our most senior government leaders in the entire interrogation process, from crafting and design to implementation, was akin to asking Izzy, out of a sense of shame and fear of being found out, not to tell anybody.
To now effectively say to the low-level interrogators who our government leaders asked to shed some of their humanity on our behalf that we now believe they shed too much, while at the same time failing to hold accountable the very leaders who set them down that path in the first place, is the most misguided decision the current administration could have made.
(Note: This post was updated upon my realization that I used an imperfect analogy. Referencing the use of an ill-trained and undisciplined contractor vice an ill-trained and undisciplined raw recruit is too close to reality; e.g. Blackwater, et. al. In fact, the military disdained the in-theater use of such contractors for the very reasons indicated above) .
Monday, August 24, 2009
Detainee Interrogation and Abuse
Updated below -- Update II:
News from several fronts this morning provide the Obama administration with a unique opportunity to demonstrate how increased transparency and less reliance on official secrecy can enhance national security.
First are reports of an internal Department of Justice (DoJ) recommendation to Attorney General Holder that some CIA interrogators, both employees and contractors, be prosecuted for brutal treatment of terrorism suspects. This can be both encouraging and discouraging. If the prosecutions are, in fact, limited to those interrogators who exceeded the guidelines for interrogations detailed in a series of legal opinions written by the DoJ's Office of Legal Council, and since repudiated, then in some sense, limited prosecution of low level interrogators is worse than no prosecutions. If they prove to be so selective, the Obama administration will succeed where the Bush administration came up short -- specifically, in institutionalizing the "Torture Memos" as the law of the land if the authors and other high level officials who crafted and implemented the abusive program to begin with escape accountability. One can only hope that this reported initial effort at prosecution will follow the chain all the way up.
In any event, look for the defense attorneys for any of the low-level interrogators who are investigated to use as part of their defense the fact that they never knew of or saw the DoJ guidelines, in part because they were so highly classified. This is but one more example in a long litany of instances where government secrecy has actually damaged the national security it was intended to protect.
The role of increased transparency in the area of detainee interrogations is best illustrated by today's other piece of news to the effect that President Obama has approved the creation of an elite team of interrogators to question key terrorism suspects, part of a broader effort to revamp U.S. policy on detention and interrogation. The article goes on to report that this effort also includes direction to the effect that:
Under the new guidelines, interrogators must stay within the parameters of the Army Field Manual when questioning suspects. The task force concluded -- unanimously, officials said -- that "the Army Field Manual provides appropriate guidance on interrogation for military interrogators and that no additional or different guidance was necessary for other agencies...".
As such, it is important to keep in mind the words of LTG John Kimmons, the then Army Deputy Chief of Staff for Intelligence, who, when releasing the Army's revised interrogation techniques in September 2006, 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." Such transparency decreases the likelihood that abuses will occur and, if they do, facilitates accountability.
Similar transparency on the part of our than 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. It would also have denied our nation's adversaries one of the most potent tools that have had over the past several years to recruit new extremists. One can only hope that our government's new detainee policies and procedures will embrace enhanced transparency. That should be the only reason for taking the unusual and highly problematic step of placing the new operational unit known as the "High-Value Detainee Interrogation Group" under the direct supervision of the National Security Council (NSC). Otherwise, if the NSC enshrouds this effort in a new degree of official secrecy, we might all wake up one day to find out that LtCol Ollie North has returned to the NSC to direct the effort.
Update: btw -- what does it say about the NY Times that they report on investigations into CIA interrogation abuses, to include cases such as "that of Manadel al-Jamadi, who died in 2003 in C.I.A. custody at Abu Ghraib prison..." in the "Politics" section of their publication. Who has decreed that murder investigations should be regarded as "politics"?
Update II: The above, of course, was a rhetorical question -- the NY Times is simply adding legitimacy to the inevitable argument that any investigation into murder and abuse of detainees is simply politically motivated by "civil-liberty extremists," as quoted in Glenn Greenwald's blog today, who are weak on national security. It would strike me that those who might make such arguments but who also advocate a strict constructionist approach to the U.S. Constitution would support such investigations into government abuse in that they are clearly in concert with the original drafters' intent. The preamble to our Constitution makes it abundantly clear that one of the principal objectives of this social compact was to "provide for the common defence," national security in today's parlance. Nonetheless, the framer's built in deliberate limits to the government's authority recognizing the inherent rights possessed by all, not because they were bestowed upon us by the government, but because of the basic dignity inherent in every human being. There is no secret coda to the Constitution that states government officials can commit crimes with impunity in the name of national security.
News from several fronts this morning provide the Obama administration with a unique opportunity to demonstrate how increased transparency and less reliance on official secrecy can enhance national security.
First are reports of an internal Department of Justice (DoJ) recommendation to Attorney General Holder that some CIA interrogators, both employees and contractors, be prosecuted for brutal treatment of terrorism suspects. This can be both encouraging and discouraging. If the prosecutions are, in fact, limited to those interrogators who exceeded the guidelines for interrogations detailed in a series of legal opinions written by the DoJ's Office of Legal Council, and since repudiated, then in some sense, limited prosecution of low level interrogators is worse than no prosecutions. If they prove to be so selective, the Obama administration will succeed where the Bush administration came up short -- specifically, in institutionalizing the "Torture Memos" as the law of the land if the authors and other high level officials who crafted and implemented the abusive program to begin with escape accountability. One can only hope that this reported initial effort at prosecution will follow the chain all the way up.
In any event, look for the defense attorneys for any of the low-level interrogators who are investigated to use as part of their defense the fact that they never knew of or saw the DoJ guidelines, in part because they were so highly classified. This is but one more example in a long litany of instances where government secrecy has actually damaged the national security it was intended to protect.
The role of increased transparency in the area of detainee interrogations is best illustrated by today's other piece of news to the effect that President Obama has approved the creation of an elite team of interrogators to question key terrorism suspects, part of a broader effort to revamp U.S. policy on detention and interrogation. The article goes on to report that this effort also includes direction to the effect that:
Under the new guidelines, interrogators must stay within the parameters of the Army Field Manual when questioning suspects. The task force concluded -- unanimously, officials said -- that "the Army Field Manual provides appropriate guidance on interrogation for military interrogators and that no additional or different guidance was necessary for other agencies...".
As such, it is important to keep in mind the words of LTG John Kimmons, the then Army Deputy Chief of Staff for Intelligence, who, when releasing the Army's revised interrogation techniques in September 2006, 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." Such transparency decreases the likelihood that abuses will occur and, if they do, facilitates accountability.
Similar transparency on the part of our than 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. It would also have denied our nation's adversaries one of the most potent tools that have had over the past several years to recruit new extremists. One can only hope that our government's new detainee policies and procedures will embrace enhanced transparency. That should be the only reason for taking the unusual and highly problematic step of placing the new operational unit known as the "High-Value Detainee Interrogation Group" under the direct supervision of the National Security Council (NSC). Otherwise, if the NSC enshrouds this effort in a new degree of official secrecy, we might all wake up one day to find out that LtCol Ollie North has returned to the NSC to direct the effort.
Update: btw -- what does it say about the NY Times that they report on investigations into CIA interrogation abuses, to include cases such as "that of Manadel al-Jamadi, who died in 2003 in C.I.A. custody at Abu Ghraib prison..." in the "Politics" section of their publication. Who has decreed that murder investigations should be regarded as "politics"?
Update II: The above, of course, was a rhetorical question -- the NY Times is simply adding legitimacy to the inevitable argument that any investigation into murder and abuse of detainees is simply politically motivated by "civil-liberty extremists," as quoted in Glenn Greenwald's blog today, who are weak on national security. It would strike me that those who might make such arguments but who also advocate a strict constructionist approach to the U.S. Constitution would support such investigations into government abuse in that they are clearly in concert with the original drafters' intent. The preamble to our Constitution makes it abundantly clear that one of the principal objectives of this social compact was to "provide for the common defence," national security in today's parlance. Nonetheless, the framer's built in deliberate limits to the government's authority recognizing the inherent rights possessed by all, not because they were bestowed upon us by the government, but because of the basic dignity inherent in every human being. There is no secret coda to the Constitution that states government officials can commit crimes with impunity in the name of national security.
Friday, August 21, 2009
Classification -- Or, "If I had a Hammer"
A hammer is a great tool, especially if you want to drive a nail. It's a lousy tool if you want to open a bottle of wine.
So it is with the classification system for national security information. It is a tremendous tool at the disposal of our government and can be quite effective when used to deprive adversaries knowledge of information that can harm our nation, especially if those adversaries have the capability and intent to exploit that information. It can also be an overly blunt tool subject to abuse, especially when it comes to the identity of covert or undercover personnel employed by our intelligence services.
Today's Washington Post has an interesting article which highlights the potential abuse of the classification tool. Reportedly, the Department of Justice (DoJ) has recently questioned military defense attorneys at Guantanamo Bay about whether photographs of CIA personnel, including covert officers, were unlawfully provided to detainees.
Based upon the WaPost report, it would appear that DoJ is not investigating violations of the Intelligence Identities Protection Act of 1982 (Pub.L. 97-200, 50 U.S.C. sec. 421-426). Rather, the article specifically states that "(i)nvestigators are looking into allegations that laws protecting classified information were breached when three lawyers showed their clients the photographs...". It is a significant distinction notwithstanding the ham-handed attempts of Victoria Toensing to conflate the two following the deliberate outing of Valerie Plame's status as an undercover CIA officer by the most senior officials of the Bush administration.
The Intelligence Identities Protection Act was passed, in part, in reaction to the assassination of Richard Welch, the CIA Station Chief in Athens in 1975. As Toensing points out in her article, the statute is intentionally limited with respect to the circumstances as to when the disclosure of a covert intelligence officer's identity would constitute a violation of law. However, what Toensing attempted to obfuscate was that even if the statute is not violated, the identity of intelligence officers who operate undercover is usually classified information, and for good reason. Protection of the intelligence officer's safety can be secondary -- the principal reason to classify the officer's identity is to protect the individuals, especially foreign nationals, with whom the officer comes into contact. If the intelligence officer's true identity and affiliation was readily known, then it would facilitate foreign intelligence services' investigations of individuals who come into contact with the officer, thus either placing recruited assets at increased risk, or dissuading potential assets from being recruited in the first place.
With the above as background, it is useful to look at the facts as reported in the WaPost article and assess exactly what the government is trying to do with the critical national security tool of classification. First of all, the classified nature of an intelligence officer's cover is not sacrosanct. For example, earlier this year Andrew Warren was identified as the CIA Station Chief in Algeria when he was charged with drugging and sexually assaulting two women.
The ready disclosure by the government of Warren's identity brings up an important provision of Executive Order 12958, as amended, which governs the classification of national security information and which is thus instrumental in investigating any alleged illegal disclosure of classified information. Section 1.7(a) of the order states that "In no case shall information be classified in order to: (1) conceal violations of law...". I have confronted many in government who take the position that this provision has next to no meaning. They argue that this section only prohibits the classification of information with the intent of concealing a violation of law. As such, they argue that classification could legitimately have the "unintended consequence" of concealing a violation of law. Although I do not agree with such a narrow interpretation, it would prove useful to examine the government's intent in the use of classification in the case of defense attorneys reportedly showing detainees photos of CIA officers.
In Warren's case, the government readily determined that the grave crimes which he is accused of committing no longer warranted standing behind the cloak of secrecy in order to protect his identity, although its disclosure would surely harm national security for the reasons outlined above. However, in the case of detainee torture, as described by President Obama himself, with torture inherently constituting a crime, the government apparently is not only willing to stand behind the cloak of secrecy to protect the identity of the CIA officers, but is also willing to use classification as an instrument of intimidation. As set forth in the WaPost article, the National Association of Criminal Defense Lawyers (NACDL) questioned the timing of the reported DoJ investigation.
So it is with the classification system for national security information. It is a tremendous tool at the disposal of our government and can be quite effective when used to deprive adversaries knowledge of information that can harm our nation, especially if those adversaries have the capability and intent to exploit that information. It can also be an overly blunt tool subject to abuse, especially when it comes to the identity of covert or undercover personnel employed by our intelligence services.
Today's Washington Post has an interesting article which highlights the potential abuse of the classification tool. Reportedly, the Department of Justice (DoJ) has recently questioned military defense attorneys at Guantanamo Bay about whether photographs of CIA personnel, including covert officers, were unlawfully provided to detainees.
Based upon the WaPost report, it would appear that DoJ is not investigating violations of the Intelligence Identities Protection Act of 1982 (Pub.L. 97-200, 50 U.S.C. sec. 421-426). Rather, the article specifically states that "(i)nvestigators are looking into allegations that laws protecting classified information were breached when three lawyers showed their clients the photographs...". It is a significant distinction notwithstanding the ham-handed attempts of Victoria Toensing to conflate the two following the deliberate outing of Valerie Plame's status as an undercover CIA officer by the most senior officials of the Bush administration.
The Intelligence Identities Protection Act was passed, in part, in reaction to the assassination of Richard Welch, the CIA Station Chief in Athens in 1975. As Toensing points out in her article, the statute is intentionally limited with respect to the circumstances as to when the disclosure of a covert intelligence officer's identity would constitute a violation of law. However, what Toensing attempted to obfuscate was that even if the statute is not violated, the identity of intelligence officers who operate undercover is usually classified information, and for good reason. Protection of the intelligence officer's safety can be secondary -- the principal reason to classify the officer's identity is to protect the individuals, especially foreign nationals, with whom the officer comes into contact. If the intelligence officer's true identity and affiliation was readily known, then it would facilitate foreign intelligence services' investigations of individuals who come into contact with the officer, thus either placing recruited assets at increased risk, or dissuading potential assets from being recruited in the first place.
With the above as background, it is useful to look at the facts as reported in the WaPost article and assess exactly what the government is trying to do with the critical national security tool of classification. First of all, the classified nature of an intelligence officer's cover is not sacrosanct. For example, earlier this year Andrew Warren was identified as the CIA Station Chief in Algeria when he was charged with drugging and sexually assaulting two women.
The ready disclosure by the government of Warren's identity brings up an important provision of Executive Order 12958, as amended, which governs the classification of national security information and which is thus instrumental in investigating any alleged illegal disclosure of classified information. Section 1.7(a) of the order states that "In no case shall information be classified in order to: (1) conceal violations of law...". I have confronted many in government who take the position that this provision has next to no meaning. They argue that this section only prohibits the classification of information with the intent of concealing a violation of law. As such, they argue that classification could legitimately have the "unintended consequence" of concealing a violation of law. Although I do not agree with such a narrow interpretation, it would prove useful to examine the government's intent in the use of classification in the case of defense attorneys reportedly showing detainees photos of CIA officers.
In Warren's case, the government readily determined that the grave crimes which he is accused of committing no longer warranted standing behind the cloak of secrecy in order to protect his identity, although its disclosure would surely harm national security for the reasons outlined above. However, in the case of detainee torture, as described by President Obama himself, with torture inherently constituting a crime, the government apparently is not only willing to stand behind the cloak of secrecy to protect the identity of the CIA officers, but is also willing to use classification as an instrument of intimidation. As set forth in the WaPost article, the National Association of Criminal Defense Lawyers (NACDL) questioned the timing of the reported DoJ investigation.
It is "customary in our experience that any kind of investigation like these are conducted after legal proceedings are finished in the case so as not to interfere with the defense function, not to interfere with the rights of defendants, not to give the appearance that the government is looking to chill the defense function," said Joshua L. Dratel, counsel for the John Adams Project and a former board member of the NACDL, who spoke on behalf of the group.
He added: "The lawyers have a duty to find out what happened to their clients, and to the extent that the government and certain agencies are resistant to that to protect themselves and to insulate themselves from accountability, there is a tension there, and to the extent that this investigation is part of that tension, it's most unfortunate. But the lawyers will not shirk their duty."
In order to further examine intent on the part of the government in its application of classification in this case, it is useful to examine how the government itself protected the identity of the CIA officers.
First of all, there is no evidence that the government took steps to conceal the identity of the CIA officers from the detainees themselves -- otherwise showing photos to the detainees would be pointless. In view of the fact that no detainee is authorized access to classified information, the government apparently violated its own provisions by failing to conceal the intelligence officers identity from the detainees. In view of the many detainees released to date, to include the 28 of 33 detainee cases heard so far in which a federal judge found insufficient evidence to support keeping them in prison, it would be interesting to learn if the government obtained non-disclosure agreements from the detainees as part of their release.
Second, the defense attorneys were reportedly able to come into possession of the photos simply because of poor trade craft on the part of intelligence officials. If individuals operate undercover, they and their agency must take steps to protect that cover. Yet, as reported in the article:
A wide variety of groups, including European investigators, human rights groups and news organizations, have compiled lists of people thought to have been involved in the CIA's program, including CIA station chiefs, agency interrogators and medical personnel who accompanied detainees on planes as they were moved from one secret location to another.
"It's a normal part of human rights research projects, and certainly in defense work, to compile lists of individuals who interacted with clients," Romero said.
Tracking international CIA-chartered flights, researchers have identified hotels in Europe where CIA personnel or contractors stayed. In some cases, through hotel phone records, they have been able to identify agency employees who jeopardized their cover by dialing numbers in the United States. Working from these lists, some of which include up to 45 names, researchers photographed agency workers and obtained other photos from public records, the sources said.
Since the government itself failed to take adequate, or in some cases even minimal, steps to protect the identity of undercover CIA officers, for the government to now reportedly investigate defense attorneys possession of photos apparently obtained through legitimate research clearly indicates the intent to intimidate defense lawyers' inquiries into alleged detainee abuse, thus the intent to conceal violations of law. As such, there is reasonable basis to believe that in this instance, due to the government's own failure to take adequate steps to protect the intelligence officers' identity, the continued classification of their identities is a violation and abuse of the President's Executive Order governing classification.
Whether it is the Bush administration's willful and purposeful disclosure of a CIA undercover agent's identity for political gain, or the Obama administration's reported use of a criminal investigation into the disclosure of undercover identities the government failed to protect itself (and thus further the political objective of avoiding criminal investigations into detainee treatment), both incidents constitute a significant abuse of the classification system and further weakens its effectiveness as a critical national security tool.
Sunday, August 16, 2009
How to Achieve 90% Reduction -- Step 3.5: Intelligence Sources - or - "Guess Who"
The Washington Post Ombudsman had an interesting article in today's WaPost regarding the all too frequent abuse of anonymous sources at that newspaper (an observation that applies to many media outlets today). He writes:
News organizations can pay dearly if they're not vigilant about sourcing. At minimum, credibility can suffer. At worst, a damaging journalistic transgression can occur.
Anonymous sources are critical to newsgathering -- and to informing readers. Without a guarantee of confidentiality, many sources wouldn't share sensitive information on corruption or misconduct.
But anonymity can be overused and abused. Sources can make false or misleading assertions with impunity. Journalists can inflate a source's reliability or even fabricate his or her existence.
The same caveats should apply to our nation's intelligence gathering. Our intelligence services reflexively apply confidentiality to all human sources. Surely, without a guarantee of confidentiality, many sources wouldn't share information with our intelligence agencies. However, our government automatically assigns confidentiality to human sources even without it being requested. Such guaranteed anonymity, no matter what the circumstances but especially without even being requested, can and often does result in false or misleading assertions being made by an intelligence source with relative impunity.
This is but one more example of whereby reflexive government secrecy can actually harm national security - as evidenced by the case of the aptly named intelligence source "Curveball" who has been referenced in many prior posts. In addition, as I noted in an earlier post, we have been precluded from having an informed discussion as a nation as to how to resolve one of the greatest sources of continued anti-American sentiment, the Guantanamo Bay detention facility, because so much of the information surrounding "the worst of the worst" remains classified. Yet, much of this classified information, which was derived from single-source HUMINT (human intelligence) has proven either unsubstantiated or outright false as evidenced by the fact that in 28 out of 33 detainee cases heard so far, federal judges have found insufficient evidence to support keeping them in prison. All the while, our adversaries' exploitation of our flawed detention policies serves as an effective recruitment tool for future extremists, further placing our nation at increased risk.
Reigning in the use of secrecy with respect to human intelligence sources can not only contribute to a 90% reduction in overall classification, but can also enhance national security.
It is time to rethink EVERYTHING we thought we knew about government secrecy.
Friday, August 14, 2009
How to Achieve 90% Reduction -- Step 3: Intelligence Sources & Methods - or - "My Guess is as Good as Your's"
By far, the single greatest influence in imposing secrecy upon the national security decision making process is the influence of "intelligence sources and methods." It is a term without official definition. Yet, more than anything else, it dictates that decisions no less than those involving the unleashing of the brutality of war are done under the veil of official government secrecy.
The ambiguity of this term is not unintentional. The term itself has its origin in statute. Specifically, section 102A(i) of the National Security Act of 1947, as amended, assigns to the Director of National Intelligence (DNI) the responsibility to "protect intelligence sources and methods from unauthorized disclosure" (not further defined). Ironically, this provision in law was not originally intended to provide empowerment to the then Director of Central Intelligence (DCI) now DNI. Rather, that language reflected the concerns of the then solely military intelligence community and the distrust that military intelligence had with respect to the new "civilian interloper" into their previously closed world. Thus, the original intent of the wording was not the investing of authority in the DCI but rather the levying of a requirement based upon mistrust. Nonetheless, over the years, our nation has moved far from those limiting origins due to creative interpretations by CIA lawyers.
It is in that vein that the intelligence community has for decades resisted any effort to limit the type or amount of information encompassed within the concept of intelligence sources and methods. By deliberately keeping the term ambiguous, the intelligence community can argue it means whatever they say it means depending upon the circumstances. For example, in Berman v. CIA, a recent case before the 9th Circuit Court of Appeals, the CIA argued that a purely analytical product such as the President's Daily Brief is an intelligence method. Fortunately, the 9th Circuit did not agree; however, the CIA has never repudiated this argument and I would anticipate that they will use it again, either in another Circuit or before the Supreme Court. As such, according to the CIA, the 4th graders in my wife's class employ an intelligence method whenever they analyze information and write a story about it.
In the recent solicitation of public input by the Public Interest Declassification Board with respect to recommended changes to the government's classification and declassification policies, the National Security Archive recommended that the term "intelligence method" be defined. Specifically, they recommended that:
- Disclosure of the method reasonably would result in clear and demonstrable harm to the national security;
- The method, if not currently used, has been used within the past 25 years; and
- The method is not publicly known.
Furthermore, by limiting what is encompassed in the term intelligence methods, my wife's students can go back to perfecting their writing skills rather than engaging in intelligence methods in school. Besides, imagine how dull the movie Spy Kids would have been if it simply showed them producing analytical products.
The ambiguity of this term is not unintentional. The term itself has its origin in statute. Specifically, section 102A(i) of the National Security Act of 1947, as amended, assigns to the Director of National Intelligence (DNI) the responsibility to "protect intelligence sources and methods from unauthorized disclosure" (not further defined). Ironically, this provision in law was not originally intended to provide empowerment to the then Director of Central Intelligence (DCI) now DNI. Rather, that language reflected the concerns of the then solely military intelligence community and the distrust that military intelligence had with respect to the new "civilian interloper" into their previously closed world. Thus, the original intent of the wording was not the investing of authority in the DCI but rather the levying of a requirement based upon mistrust. Nonetheless, over the years, our nation has moved far from those limiting origins due to creative interpretations by CIA lawyers.
It is in that vein that the intelligence community has for decades resisted any effort to limit the type or amount of information encompassed within the concept of intelligence sources and methods. By deliberately keeping the term ambiguous, the intelligence community can argue it means whatever they say it means depending upon the circumstances. For example, in Berman v. CIA, a recent case before the 9th Circuit Court of Appeals, the CIA argued that a purely analytical product such as the President's Daily Brief is an intelligence method. Fortunately, the 9th Circuit did not agree; however, the CIA has never repudiated this argument and I would anticipate that they will use it again, either in another Circuit or before the Supreme Court. As such, according to the CIA, the 4th graders in my wife's class employ an intelligence method whenever they analyze information and write a story about it.
In the recent solicitation of public input by the Public Interest Declassification Board with respect to recommended changes to the government's classification and declassification policies, the National Security Archive recommended that the term "intelligence method" be defined. Specifically, they recommended that:
“Intelligence method” means information that would disclose a process, unique mode of analysis, means of gathering data, or processing system or equipment used to produce intelligence that is lawful and authorized as part of an agency’s statutory mission, so long as:
- Disclosure of the method reasonably could be expected to result in damage to the national security, and the original classification authority is able to identify or describe the damage;
- The method is not publicly known.
- Disclosure of the method reasonably would result in clear and demonstrable harm to the national security;
- The method, if not currently used, has been used within the past 25 years; and
- The method is not publicly known.
Furthermore, by limiting what is encompassed in the term intelligence methods, my wife's students can go back to perfecting their writing skills rather than engaging in intelligence methods in school. Besides, imagine how dull the movie Spy Kids would have been if it simply showed them producing analytical products.
Thursday, August 13, 2009
How to Achieve 90% Reduction -- Step 2: No More Classifed Ham Sandwiches
The other day, I set forth a vision in which President Obama directs that the amount of information classified by our government be reduced by 90% by the end of his current administration. Yesterday I wrote about the first step in achieving such a goal -- prohibiting the application of the 'Tootsie Pop" theory. Today, I want to start by referring to the old adage about prosecutors and ham sandwiches and point out that in a similar manner, based upon today's exceedingly broad and almost nonexistent classification standards, any classifier worth his or her salt could classify a ham sandwich.
The classification standards as set forth in the current executive order are rather straight forward; specifically, Section 1.1(a)(4) states:
the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.
The current standard is exceedingly broad in order to allow the agencies to apply discretion and judgment in making classification decisions. Based upon my experience, the problem lies in that agencies are more than willing to embrace the discretion yet very rarely apply the judgment. Accordingly, in order to reduce by 90% the amount of information classified, a new executive order must apply the judgment on the agencies' behalf.
Specifically, as a minimum, a new classification standard must include the following elements:
1. The unauthorized disclosure of the information must be expected to result in at least serious damage to the national security (i.e. no more CONFIDENTIAL information).
2. The damage must be demonstrable; i.e. it has to be more than hypothetical and more than "we don't know and want to err on the side of caution" which is the basis, for example of the "mosaic theory." Furthermore, it must be demonstrable at the time of original classification.
3. The original classifier must assess what damage could occur to the national security should the information be withheld and certify that he or she has determined that the damage from disclosing the information exceeds the damage from withholding.
4. Finally, the standard must provide a detailed litany of the types of information that is classifiable, the types of information for which classification is prohibited, along with the direction that if an agency has information that does not fit into any of the examples, they must first seek the authorization of the Director of the Information Security Oversight Office prior to assigning classification (although provisional classification would be permissible when time is of the essence).
At the very least, a standard such as above would require that classification be a deliberate, not reflexive decision. It would also subject each classification decision to an independent review and assessment, something which is exceedingly difficult today since the current standard entails a great deal of agency discretion. For example, I do not recall the Interagency Security Classification Appeals Panel (ISCAP) ever overturning an agency classification decision that was less than 25 years old (i.e. subject to the current standard outlined above). That in and of itself says it all. Under today's "standard" it is almost impossible to be second guessed.
The classification standards as set forth in the current executive order are rather straight forward; specifically, Section 1.1(a)(4) states:
the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.
The current standard is exceedingly broad in order to allow the agencies to apply discretion and judgment in making classification decisions. Based upon my experience, the problem lies in that agencies are more than willing to embrace the discretion yet very rarely apply the judgment. Accordingly, in order to reduce by 90% the amount of information classified, a new executive order must apply the judgment on the agencies' behalf.
Specifically, as a minimum, a new classification standard must include the following elements:
1. The unauthorized disclosure of the information must be expected to result in at least serious damage to the national security (i.e. no more CONFIDENTIAL information).
2. The damage must be demonstrable; i.e. it has to be more than hypothetical and more than "we don't know and want to err on the side of caution" which is the basis, for example of the "mosaic theory." Furthermore, it must be demonstrable at the time of original classification.
3. The original classifier must assess what damage could occur to the national security should the information be withheld and certify that he or she has determined that the damage from disclosing the information exceeds the damage from withholding.
4. Finally, the standard must provide a detailed litany of the types of information that is classifiable, the types of information for which classification is prohibited, along with the direction that if an agency has information that does not fit into any of the examples, they must first seek the authorization of the Director of the Information Security Oversight Office prior to assigning classification (although provisional classification would be permissible when time is of the essence).
At the very least, a standard such as above would require that classification be a deliberate, not reflexive decision. It would also subject each classification decision to an independent review and assessment, something which is exceedingly difficult today since the current standard entails a great deal of agency discretion. For example, I do not recall the Interagency Security Classification Appeals Panel (ISCAP) ever overturning an agency classification decision that was less than 25 years old (i.e. subject to the current standard outlined above). That in and of itself says it all. Under today's "standard" it is almost impossible to be second guessed.
Wednesday, August 12, 2009
How to Achieve 90% Reduction -- Step 1: Tootsie Pop Theory
Yesterday, I set forth a vision in which President Obama directs that the amount of information classified by our government be reduced by 90% by the end of his current administration. One simple way to work toward achieving that goal is to simply prohibit the application of what I call the "Tootsie Pop theory."
Even if you don't have kids of your own you probably recall from your own childhood the tootsie pop, the candy in which you had to work your way through a hard, not so good tasting outside in order to reach the soft, chewy, tootsie roll candy on the inside. Many in government, especially in the intelligence community, employ the classification process the same way.
Many intelligence officials will readily admit that they purposely classify a significant amount of information in order to simply obfuscate or otherwise make it more difficult to learn of the truly sensitive information. Probably the best example of this, but by no means only example, is the classification of the intelligence budget. Intelligence officials insist on keeping classified the top line of past year intelligence budgets because of the "slippery slope" argument; i.e., once the top line is released, then the pressure will be on to release the next line and so on. So rather than simply making a rational argument which justifies withholding specific lines of the intelligence budget, officials continually apply a blanket determination, whether it makes sense or not.
Similarly, in 2006 my former office did an audit of the withdrawal of records from public access at the National Archives for classification purposes. During the course of this review, the audit identified at least one review effort whereby the Central Intelligence Agency (CIA) deliberately removed a considerable number of purely unclassified records in order to obfuscate the classified equity the agency was intent on protecting. By the time of the audit, even the CIA could not distinguish between which records were which.
Other than appearing downright silly, what is the impact of the "tootsie pop theory?" Using the example of the continued classification of intelligence budget information, the "9-11 Commission" stated it best when they observed that no informed public debate over intelligence priorities and resources can occur as long as the public is kept unaware of the total spending and distribution of funds in the intelligence community.
The application of this practice is not isolated. Unfortunately, its impact on any adversary is negligible while the impact on our own government and our ability to make fully informed national security related decisions is severe. It significantly contributes to flawed decisions. Once again, American citizens are placed at increased risk simply because of a bureaucratic impulse to defend a senseless secrecy principle.
It is past time to rethink the fundamentals.
Even if you don't have kids of your own you probably recall from your own childhood the tootsie pop, the candy in which you had to work your way through a hard, not so good tasting outside in order to reach the soft, chewy, tootsie roll candy on the inside. Many in government, especially in the intelligence community, employ the classification process the same way.
Many intelligence officials will readily admit that they purposely classify a significant amount of information in order to simply obfuscate or otherwise make it more difficult to learn of the truly sensitive information. Probably the best example of this, but by no means only example, is the classification of the intelligence budget. Intelligence officials insist on keeping classified the top line of past year intelligence budgets because of the "slippery slope" argument; i.e., once the top line is released, then the pressure will be on to release the next line and so on. So rather than simply making a rational argument which justifies withholding specific lines of the intelligence budget, officials continually apply a blanket determination, whether it makes sense or not.
Similarly, in 2006 my former office did an audit of the withdrawal of records from public access at the National Archives for classification purposes. During the course of this review, the audit identified at least one review effort whereby the Central Intelligence Agency (CIA) deliberately removed a considerable number of purely unclassified records in order to obfuscate the classified equity the agency was intent on protecting. By the time of the audit, even the CIA could not distinguish between which records were which.
Other than appearing downright silly, what is the impact of the "tootsie pop theory?" Using the example of the continued classification of intelligence budget information, the "9-11 Commission" stated it best when they observed that no informed public debate over intelligence priorities and resources can occur as long as the public is kept unaware of the total spending and distribution of funds in the intelligence community.
The application of this practice is not isolated. Unfortunately, its impact on any adversary is negligible while the impact on our own government and our ability to make fully informed national security related decisions is severe. It significantly contributes to flawed decisions. Once again, American citizens are placed at increased risk simply because of a bureaucratic impulse to defend a senseless secrecy principle.
It is past time to rethink the fundamentals.
Tuesday, August 11, 2009
So What's to Be Done?
In furtherance of yesterday's post, what is to be done?
In many regards, the Executive order governing classification is like the Russian Constitution -- the words of which may describe a model democracy yet its implementation can result in an authoritarian autocracy. While the words of a document are important, it is the leadership at the top which is most critical. The exact words of the current classification order can support an outcome which produces significantly more or significantly less classified information. Well-intentioned government officials need to be provided guidance as to which is the preferred outcome.
In that vein, there is only one individual who can ensure that the current effort to revise the classification framework does not revert to simple tinkering around the edges and instead achieves the fundamental change in mindset necessary if we are to ensure that our classification system does not continue to inflict more harm on us than our adversaries. That individual, of course, is President Obama.
Much the same way that president Kennedy set out a bold vision for the nation on September 12, 1962, when he declared that we would send a manned rocket "to the moon ... and return it safely to earth ... before the decade is out," President Obama can set a vision of reducing by 90% the amount of information classified by our government by the end of his current administration.
And to paraphrase Kennedy, Obama can state that we choose this as our goal, not because it is easy, but because it is hard, because that goal will serve to make Americans safer, will reduce the ability of our adversaries to recruit future extremists, will produce better decisions within government, and is highly consistent with our core values and ideals as a nation -- it is a challenge we are unwilling to postpone and one in which we intend to prevail -- and as a result we will leave a better America for future generations.
I will have more thoughts on how to achieve this goal, should the President be so bold, in future posts.
In many regards, the Executive order governing classification is like the Russian Constitution -- the words of which may describe a model democracy yet its implementation can result in an authoritarian autocracy. While the words of a document are important, it is the leadership at the top which is most critical. The exact words of the current classification order can support an outcome which produces significantly more or significantly less classified information. Well-intentioned government officials need to be provided guidance as to which is the preferred outcome.
In that vein, there is only one individual who can ensure that the current effort to revise the classification framework does not revert to simple tinkering around the edges and instead achieves the fundamental change in mindset necessary if we are to ensure that our classification system does not continue to inflict more harm on us than our adversaries. That individual, of course, is President Obama.
Much the same way that president Kennedy set out a bold vision for the nation on September 12, 1962, when he declared that we would send a manned rocket "to the moon ... and return it safely to earth ... before the decade is out," President Obama can set a vision of reducing by 90% the amount of information classified by our government by the end of his current administration.
And to paraphrase Kennedy, Obama can state that we choose this as our goal, not because it is easy, but because it is hard, because that goal will serve to make Americans safer, will reduce the ability of our adversaries to recruit future extremists, will produce better decisions within government, and is highly consistent with our core values and ideals as a nation -- it is a challenge we are unwilling to postpone and one in which we intend to prevail -- and as a result we will leave a better America for future generations.
I will have more thoughts on how to achieve this goal, should the President be so bold, in future posts.
Sunday, August 9, 2009
Classification: Radical, Let Alone Incremental, Reform Is Not Enough!
In last week's Secrecy News, Steve Aftergood writes of the need for a "fresh" start in classification policy. He rightfully notes:
The current Obama Administration review of classification policy will almost certainly produce an incremental adjustment to existing practices.... But it is unlikely to lead to a wholesale replacement of the basic framework of the cold war classification system that has lingered now for more than half a century. The "next generation" of national security information policy is still out of reach.
I agree with Aftergood's assessment, as well as his recommendations for "experimental pilot projects in classification and declassification and related activities" in order to hasten the development "of more efficient and transparent information security policies." However, I believe that they do not address the core challenge with respect to how our government employs the critical national security tool of classification. Specifically, it is still wielded as a blunt instrument with the near total absence of judgment and discernment to the point that it inflicts more harm on our nation than good. Secrecy in government is invoked much too casually with little to no regard to the unintended, but very real and almost inevitable consequences of its employment. The time has come to forsake once and for all the Cold War mindset which continues to serve as the basis for today's classification system.
Secrecy can act like a toxin in the body politic. Much like chemotherapy in the human body, it can have beneficial results when used in an extremely controlled and limited manner. However, neither should be employed lightly as they can easily produce outcomes worse than the ill they are attempting to cure.
In government, secrecy ultimately makes for flawed decisions. It undermines our form of government and facilitates actions inconsistent with our nation’s core values and beliefs. Secrecy in government must be actively avoided and strong policies and oversight must be put in place to limit its use. Secrecy in government should be employed only when disclosure of the information will demonstrably lead to even greater harm to our nation. If we do not take advantage of the current environment and shed the shackles of today’s classification mindset, when will we ever?
I do not make these observations lightly. For those who do not know my background, I spent my 34-year public service career immersed in the arcane field of government secrecy. Like many Americans, I also came to know the value of effective government secrecy in very personal terms through my two sons, both of whom placed themselves in harm's way in service to their country. My eldest son made extensive travels overseas in support of our nation's intelligence efforts. My youngest son was a combat infantry platoon leader during some of the most intense periods of combat in Iraq. In many regards, their well-being depended upon effective government secrecy. I have seen government secrecy work, and I have seen it fail spectacularly, causing grave damage to our nation’s security and overall well-being.
When referring to failures in government secrecy, I am not talking about the absurd examples of classification abuse which many like to rightfully hold up to ridicule. Rather I believe that it can be readily demonstrated that today's classification system continues to do more harm to our national security than it prevents; contributes to the needless squandering of American blood and treasure on an unimaginable scale; results in the death or grave wounding of American military service members who would otherwise not have become casualties of war but for abuses of the classification system; undermines our constitutional form of government and the rule of law; and repeatedly fosters decisions on the part of our national leaders that are flawed and ultimately prove to be detrimental to the overall well-being of our nation's citizens. In short, the excessive use of secrecy by our government has frequently imposed exceptionally grave damage to our national security, the very damage it is intended to preclude. In fact, the indiscriminate use of secrecy has caused more damage to our nation’s well-being than all the espionage cases in our country’s history.
In order to stem this continuing damage to our national security, a new "presumption" must be adopted throughout the government with respect to how information is handled. Specifically, it must be presumed that ALL official information, to include information relating to intelligence sources and methods and other national security matters that is routinely classified today, is subject to immediate disclosure. Withholding based upon classification must become the EXCEPTION, not the norm, and used only when it is clearly demonstrable that the public disclosure of the information would cause greater harm to the national interest than would its withholding from disclosure.
To be clear, what I am addressing herein is the reflexive posture, adopted by almost all in government, to include the three co-equal branches, whereby we consistently genuflect at the altar of "national security" and accept as a given, without the least bit of questioning or introspection, that the withholding of certain types of information, be it relating to intelligence, military, or foreign policy matters, will invariably serve to preclude or minimize damage to our nation's well-being. It is the conventional wisdom in almost every corner, both to the right and the left of the political spectrum, that the withholding of "national security information" from public disclosure is essential to our security and that the practice makes us safer as a nation. No less an advocate of openness in government than Senator Russ Feingold (D-WI) has stated "through the classification system and the common law, we've carved out limited exceptions for highly sensitive factual information about military operations, intelligence sources and methods, nuclear programs and the like. That is entirely appropriate and important to protecting our national security.”
I disagree. I believe we must challenge such reflexive thinking and fundamentally reassess in cold, stark terms the consequences of such reasoning and practices. Specifically, we must closely reexamine what is gained and what is lost by our nation when we employ secrecy in government.
In this regard, I believe a good place to start is in reviewing the recent espionage cases our nation experienced, at least those which entailed the unauthorized disclosure of classified information. Since the classification system is intended to preclude the very real damage to our national security which many of these cases inflicted upon our nation, one means of assessing what we gain and what we lose through government secrecy is to examine the damage to national security that these instances of espionage caused and compare it to the damage to our national security which government secrecy in and of itself has wreaked upon our country and its citizens.Although not exhaustive, the Federal Bureau of Investigation (FBI) web site, as of the date of this posting, lists 14 espionage cases since 2000 which entailed the unauthorized disclosure of classified information. The severity and seriousness of these cases cannot be minimized -- nor can the damage to national security. Nonetheless, I believe it appropriate to use the damage for comparative purposes. The cases, in order of year of arrest, along with a brief synopsis of the damage caused, are as follows:
1. Mariano Faget (2000) - Worked for the Immigration and Naturalization Service (INS) where he had access to confidential information about Cuban defectors and dissidents. After being observed meeting with a representative of the Cuban Interests Section in Miami, he was caught in an FBI sting. He was convicted of espionage, converting government records to his own use, failing to disclose foreign business contacts when applying for a security clearance, and lying to the FBI.
2. George Trofimoff (2000) - Allegedly sold classified material to the Russians while serving as the civilian chief of the U.S. Army Element of the Nuremberg Joint Interrogation Center in Germany from 1969 to 1994. He retired from his Army civilian job in 1995. He was alleged to have passed along to the KGB lists of U.S. intelligence objectives, assessments of Soviet and Warsaw Pact military capabilities and evaluations of the threat posed by Soviet chemical and biological weapons. In 2001, he was convicted of spying for the old Soviet Union.
3. Brian P. Regan (2001) - Worked at the National Reconnaissance Office (NRO) and reportedly attempted to sell classified information to Iraq, Libya, and China. The prosecution sought the death penalty (the first time it would have been used for espionage since Julius and Ethel Rosenberg). While the jury did not impose the death penalty, they did find Regan guilty of three counts of attempted espionage.
4. Ana Belen Montes (2001) - Worked at the Defense Intelligence Agency (DIA) and pleaded guilty to conspiracy to commit espionage for the government of Cuba. In 2007, a DIA counterintelligence official alleged that it was Montes who told Cuban intelligence officers about a clandestine U.S. Army camp in El Salvador. The DIA official, who led DIA's investigation of Montes, named Montes as being directly responsible for the death of a Special Forces Sergeant who was killed at El Paraiso, El Salvador, in 1987 during an attack by Cuban-supported guerrillas. In addition, former Undersecretary of State John Bolton has stated that an official 1998 U.S. government report with significant contributions by Montes concluded that Cuba did not represent a significant military threat to the United States or the region. Bolton alleged that because of Montes' espionage, it was not possible to exclude the possibility that the U.S. government may have overlooked Cuba as a potential threat because of Montes' influence and the way she shaped her reporting at DIA.
5. Robert P. Hanssen (2001) - Was a Special Agent with the FBI. He volunteered to furnish highly sensitive documents to KGB intelligence officers assigned to the Soviet embassy in Washington, DC. Hanssen's activities had links to other, earlier espionage and national security investigations including the Aldrich Ames and Felix Bloch cases. Hanssen allegedly compromised numerous human sources of the U.S. Intelligence Community along with technical intelligence operations. He pleaded guilty to fifteen counts of espionage.
6. Donald K. Keyser (2004) - Is a former Principal Deputy Assistant Secretary of State for East Asian and Pacific Affairs. He pleaded guilty to unlawfully removing classified United States documents from the Department of State and to two counts of making false official statements. From 2002 to September 2004, Keyser had an undisclosed personal relationship with a female Taiwanese national who was employed by the National Intelligence Bureau, which is the foreign intelligence agency of the government of Taiwan.
7. Kenneth Wayne Ford (2004) - Is a former employee of the National Security Agency (NSA). In 2004, NSA officials received a tip that Ford had a box full of its secrets that he was trying to sell to foreign agents. As it turns out, while Ford did have boxes of classified information at his home, there is no indication that he was trying to sell them. He was convicted of one count of unauthorized possession of national defense information and one count of making a false statement when he applied for a job requiring a top secret clearance.
8. Lawrence Franklin (2005) - Is a former Iran desk officer in the Office of the Secretary of Defense at the Pentagon. Franklin was charged along with Steven J. Rosen and Keith Weissman, former employees of the American Israel Public Affairs Committee (AIPAC) with conspiring with each other to unlawfully disclose classified national defense information. Franklin was also charged in the indictment with conspiracy to communicate classified information to an agent of a foreign government. Franklin eventually pleaded guilty to conspiracy to communicate national defense information to persons not entitled to receive it; conspiracy to communicate classified information to an agent of a foreign government; and the unlawful retention of national defense information. I personally reviewed the "classified" evidence involving Franklin when I served as an expert adviser and potential witness for Weissman. I wrote about the experience here. The charges against Rosen and Weissman were eventually dismissed. Franklin's sentence of almost 13 years was eventually reduced to probation.
9. Leandro Aragoncillo (2005) - is a former U.S. Marine and is one of two individuals from Vice President Dick Cheney's Office of the Vice President (OVP) who were eventually charged and convicted of crimes associated with their handling of classified information. Aragocillo pleaded guilty to espionage and with leaking classified information to the regime of a former Filipino president. Also convicted was Michael Ray Aquino, a former deputy director of the Philippines National Police.
10. Noshir S. Gowadia (2005) - Worked for a defense contractor that built the B-2 stealth bomber and helped develop its propulsion system. Gowadia was charged with three counts of illegally transmitting national defense information and three counts of violating the Arms Export Control Act on behalf of the People's Republic of China and others. As of the date of this post, his trial is still pending.
11. Amen Ahmed Ali, Ibrahim A. Omer and Mohamed Al-Rahimi (2006) - Were charged with passing to Yemen classified information received from a government undercover agent. The trial is still pending as of the date of this posting --Al-Rahimi remains at large.
12. Gregg William Bergersen (2008) - Was a weapons policy analyst at the Department of Defense who was charged with passing classified government materials to the People's Republic of China. Much of the information related to the sale of military technology to Taiwan. He pleaded guilty to a single count of conspiracy to disclose national defense secrets.
13. Hassan Abujihaad (2008) - Was serving as a signalman aboard the USS Benfold. He was accused of sharing classified details about the vulnerabilities and movements of the ship to which he was assigned, and others. He was convicted of espionage and material terrorism support.
14. Harold & Nathaniel Nicholson (2009) - Harold J. Nicholson—a former CIA employee—and his 24-year-old son Nathaniel were charged with two counts of conspiracy, one count of acting as an agent of a foreign government (in this case, Russia), and four counts of money laundering. Harold Nicholson was already in prison, serving a more than 23-year sentence for his 1997 conviction on charges of conspiring to commit espionage for the Russian Federation. While in prison, Nicholson allegedly continued his attempts to maintain his relationship with the Russians through his son. As of the date of this posting, their trial is still pending and Nathaniel Nicholson has been granted pre-trial release.
Again, I do not intend to diminish the severity of most of the cases outlined above, or the damage that they inflicted upon the national security. I most certainly do not intend in any way to condone violations of trust or other covert acts intended to harm our nation or to provide advantage to foreign powers. However, I do believe that it is useful to compare the damage that occurred to our national security as a consequence of the above cases with the damage to national security that occurred as a direct consequence of the government's imposition of classification controls on official information in the following instances:
1. Bin Laden Determined to Strike in US – It is difficult to read this previously TOP SECRET document and be able to justify its classification. Ironically, according to the current policy of the Director of National Intelligence, if our government had its way, since this information appeared in a President's Daily Brief (PDB), it would never see the light of day. It is only as a direct consequence of the efforts of the "9-11 Commission" that the document was eventually publicly released. Even the redacted portions in the released version refer to information we received from foreign intelligence services. Our mindless, reflexive insistence that such information be protected without any forethought or deliberation was covered in this earlier post. Imagine a scenario whereby the information in this PDB was not shared solely with President Bush while he was on vacation in Crawford, TX. Rather, imagine if the contents of this PDB had been subject to public dissemination. It would have undoubtedly been subject to news and editorial coverage in the media. It may very well have also been the subject of Congressional oversight hearings. You can be assured that it would have been the subject of inquiries from everyday Americans who wanted to know what their government was doing in response to such a report. At the very least, we may have been able to, at least inadvertently, dissuade Al-Qaeda from launching the attacks when they did. At best, our intelligence agencies would have been better able to "connect the dots" since rather than depending upon the ineffective sharing of classified information between agencies, they would have simply had to pick up the newspaper and respond to media and Congressional inquiries to understand the true nature of the threat. Damage to national security: Worst foreign attack on the U.S. in the history of the republic; 2,974 deaths, excluding the 19 hijackers, trillions of dollars in losses, incalculable impact upon the health of untold numbers of Americans and upon the overall economy; led to Afghanistan war which continues to this date at the cost of 1,284 coalition deaths including 768 Americans, with at least 3,372 U.S. personnel wounded in action as of August 6, 2009. In terms of treasure, it is estimated the Afghanistan War will have cost almost $440,000,000,000.00 by the end of FY 2009.
2. National Intelligence Estimate (NIE): Iraq's Continuing Programs for Weapons of Mass Destruction - Prior to their October 2002 vote to authorize the use of military force against Iraq, in order to better inform their deliberations some members of Congress requested that an NIE be prepared on Iraq’s programs for weapons of mass destruction. The NIE and its key judgments, in addition to being wrong, were classified. The NIE was delivered to Congress the week before its vote and, since it was classified, in order to read it members had to go to a special room and sign a log. It’s been variously reported how many Senators actually read the classified report prior to authorizing the President to take our nation to war, but the publication The Hill quoted one senior congressional intelligence staffer as saying that “You can say with 100 percent certainty it’s less than 10.” How many more would have read it had it not been classified is impossible to say – but we can only hope that it would have been more than 10. And what would they have learned if they had read the original NIE rather than rely upon the unclassified white paper which was released by the Director of Central Intelligence at the same time and which was intended as an unclassified version of the NIE? According to the Senate report on pre-war intelligence on Iraq, they would have learned of the State Department's Bureau of Intelligence and Research alternative view on whether Iraq would have a nuclear weapon this decade and that the Department of Energy dismissed attempts by Iraq to obtain high-strength aluminum tubes as being part of Iraq’s effort to reconstitute its nuclear program. They would also have learned that while the key judgments were almost identical in layout and substance in both papers, the key judgments of the unclassified paper were missing many of the caveats that were used in the classified NIE. As concluded by the Senate Select Committee on Intelligence, removing caveats such as "we judge" or "we assess" changed many sentences in the unclassified paper to statements of fact rather than assessments – an egregious act since a cardinal rule of the declassification process is to ensure that it does not alter the substance of the information released. What is equally disturbing is the rationale offered by drafters of the classified NIE as to why the unclassified paper omitted the fact that the intelligence community’s own nuclear experts at the Department of Energy did not agree with the NIE’s conclusion regarding the aluminum tubes, even though the allegation was being used by some of our leaders to stir up images of mushroom clouds appearing somewhere over the United States. Again, according to the Senate Select Committee on Intelligence, officials at the National Intelligence Council indicated that they did not refer to disagreements between intelligence agencies in unclassified documents out of concern that the country being discussed would be “tipped off to a potential cover story.” Such a concern can understandably justify classification in some rare instances. However, to use it as a rationale for a decision which ultimately led to the production of a paper which has been judged as being misleading to both the Congress and the American people, in as grave a matter as a decision to unleash, by choice, the brutality of war, is a perfect example of how the failure to balance the damage that results from disclosure, with the damage that results from classifying, can have exceedingly tragic consequences for our nation. Damage to national security: The death of more than 4,200 and the wounding of more than 30,100 American service members, the death of up to a 100,000 or more Iraqis, hundreds of thousands of American troops sent into the trials of combat (many for multiple tours), the expenditure of over $1,600,000,000,000.00 by the end of FY 2009 belonging to our country's taxpayers (both today and for generations to come), and the recruitment of countless future terrorists willing to endure "martyrdom" in order to inflict harm upon our nation.
3. Powell’s Presentation to the United Nations: The lead up to the Iraq War provides another excellent example of how even our own intelligence community can be hampered by excessive and needless classification and compartmentalization. Again, 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 – according to Los Angeles Times reporter Bob Drogin who wrote a book on Curveball – is that at the time of the U.N. presentation, and even not until well after the war had begun, the CIA did not even know the name of the source whose fabrications served as the basis upon which our nation chose to go to war. And, according to Drogin, the reason why is that German intelligence refused to share his name. They did so simply because they could; it was “pride of service”, a form of one-upmanship. Thus, our reflexive insistence that the identity of all intelligence sources regardless of the circumstances remain secret allowed "drunken liar" to lead this country into a war of choice. Damage to national security: See item 3 above.
4. The "Torture Memos" - I wrote about secrecy as an enabler of evil here and about a specific Office of Legal Council (OLC) pure legal, yet classified, analysis of interrogation techniques here. None of these memos would have been written in the manner they were, and used to support the policies they did, unless the authors could be assured of the memos’ secrecy and the public’s continuing ignorance of their content. I have testified to Congress that the March 14, 2003, OLC memorandum represents one of the worst abuses of the classification process that I had seen during my entire Federal career. While only the official who inappropriately assigned classification markings to the OLC memo in the first place can attest to the reasons for that decision, the effects of it are visible to all. In addition to keeping the information in the memo from the American people and the two co-equal branches of government, use of classification in this instance is a prime example of how classification is used, not for purposes of national security, but rather as a bureaucratic weapon to blunt potential opposition. Reportedly, top lawyers for the military services did not receive a final copy of the OLC memo, in part because they opposed the harsh interrogation techniques endorsed in the memo, as well as the lack of transparency about how we handle enemy combatants. Our military lawyers fully recognize that our young men and women we send into battle as combatants are subject to capture and that we needlessly increase their exposure to potential abuse in this and future conflicts by ceding the moral high ground in the treatment of detainees. This is not to say that our enemy in the current conflict is anything but brutal; however, the first pillar of our national security strategy is to not reduce ourselves to the level of our adversary. Damage to national security: We tortured only because we thought we could engage in the practice while at the same time deny its use and keep it secret. Based upon repeated false statements on the part of our national leaders that "we do not torture," it is reasonable to believe that we would never have embarked on this dark chapter in our nation's history had the deliberations on this topic been public, and our leaders knew that. Otherwise, there was no rationale to have classified these interrogation "techniques" and especially the shoddy legal analysis which served as their underpinning. The stated rationale -- not to allow adversaries the ability to know and thus train to resist such techniques, defies common sense. How do you train to resist waterboarding? Also, we can only hope that the concerns of our military JAGs do not come to fruition and that current and future American captives do not find themselves subjected to the same torture as outlined in these memos. Finally, our nation now has a significant credibility problem as we attempt to challenge other nations on human rights abuses.
5. Warrantless Wiretaps: Last month, 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 from Congress, the courts and the American people violations of law and to engage in a cover-up – an abuse which our system of checks and balances is intended to preclude. This much is for certain:
a. The President's program violated the provisions of the Foreign Intelligence Surveillance Act (FISA), a factual 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.
b. 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 warrantless 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.
c. 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.
Damage to national security: The secrecy of the program, in addition to facilitating law-breaking and undermining our Constitutional form of government caused significant harm to our counterterrorism programs as well. The IGs' report concluded that "extraordinary and inappropriate" secrecy about the warrantless eavesdropping program undermined its effectiveness as a terrorism-fighting tool. Furthermore, had Ashcroft, Comey, Mueller and other Department of Justice officials resigned, an intention known to others to include Cheney but was unknown to Bush, our country would most likely have experienced a constitutional crises the likes of which was not seen since the "Saturday Night Massacre" of the Nixon administration, which eventually contributed in a very significant way to his subsequent resignation in face of near certain impeachment.
6. Guantanamo Bay Detention Facility: Our current national security strategy recognizes that we are engaged in an ideological struggle against many forms of extremism. In fact, the first pillar of that strategy as articulated by the prior administration is promoting freedom, justice, and human dignity, which includes offering people throughout the world a positive vision rooted in America's beliefs, thereby isolating and marginalizing violent extremists. This strategy reflects our success in ending the Cold War, not by defeating the Soviet Union militarily, but rather by promoting American ideals and values which ultimately led to the demise of the most formidable foe our nation has ever confronted. Yet, by maintaining this ill-advised detention facility, we perpetuate one of the greatest sources of continued anti-American sentiment today. As I wrote in this earlier post, it is the reflexive employment of classification more than anything else which precludes our country from addressing this issue in an informed manner. The void left by the absence of substantive information has been filled with irrational fear based upon deliberate and repeated misrepresentations by our nation's leaders that this facility houses the "worst of the worst." This claim is belied by facts as noted in a recent post by Glenn Greenwald who wrote: two more Guantanamo detainees … were ordered released by federal judges on the ground that there was insufficient evidence to justify their detention. The Washington Independent's Daphne Eviatar notes this amazing fact: "In 28 of 33 Gitmo detainee cases heard so far, federal judges have found insufficient evidence to support keeping them in prison." Virtually all of those detainees were held for many years without charges and with no opportunity for judicial review. Once they finally got into a court, federal judges (including Bush-43 appointed judges) in the vast majority of cases concluded there was virtually no credible evidence ever to justify their detention. Damage to national security: We have become paralyzed as a nation to the point that our national leaders and the American people cannot have an informed discourse in order to resolve the status of the detention facility at Guantanamo Bay. Thus, rather than providing the world populace with a positive vision rooted in American beliefs we instead provide extremists worldwide with a tremendous recruiting bonanza. We must recognize that we are actually assisting our nation's adversaries in recruiting far too many "martrys" (actually, one is too many), ready to die in order to inflict harm upon Americans. Montes the spy was rightfully condemned for compromising information that may well have led to the death of an American soldier in El Salvador. How many countless American soldiers have been killed or wounded in Iraq and Afghanistan by an individual recruited and motivated as a direct result of our adversaries’ exploitation of our Guantanamo Bay detention policy?
The above is by no means intended to serve as an exhaustive list of instances this decade (let alone throughout our history) wherein government claims of secrecy have actually endangered or caused extraordinary grave damage to our national security. I will write about additional examples in future posts. However, I believe the above clearly establishes that during the current decade, far greater damage to national security occurred as a consequence of the classification of information as opposed to the damage that resulted from compromises through espionage. Continuing my earlier analogy regarding toxins, it is as if for a disease that has a mortality rate of 20%, we came up with a cure that has a mortality rate of 40%. Sooner or later, we must face up to the fact that the cure is worse than the ill.
In furtherance of the above, a telling comparison involves the espionage case of Brian Regan wherein our government wanted to put to death a man who merely attempted to pass classified information to foreign powers. The damage that Regan inflicted upon our nation is less than miniscule when compared to the overwhelming loss of blood and treasure our citizens have endured this decade alone as a result of many decisions by our national leaders that proved to be extraordinarily flawed due, in large part, to the influence of the current classification system. I find it incomprehensible as to how in the former instance, our government literally proposes to execute someone, while in the latter instance our government is perfectly content to continue “business as usual” and allow the toxic power of secrecy to continue to permeate the decision-making process of our national leaders.
While I do want to shakeup conventional thinking on this topic, I do not intend to replace one blunt instrument with another. I accept the need for classification in exceedingly limited circumstances. However, I firmly believe that that overwhelming majority of information classified today, upwards of 90% or more, does not warrant being kept secret. The remaining 5-10% of today’s classified information, especially in military matters, should remain classified. In fact, some aspects of how the military treats classification can serve as a model for the rest of the government, to include the intelligence community. Unlike other countries, we recognize that to consider ALL military matters classified is inconsistent with our form of government and not conducive to facilitating the type of public discourse our society must continually have with respect to the proper maintenance and use of military force. Nonetheless, we do consider ALL, or almost all, applications of intelligence sources and methods to be classified, which, in turn, results in the classification of far too many policy deliberations and decisions. We do this despite the recognition that secrecy comes at a price – sometimes a deadly price – oftentimes through its impact upon the decision-making process. Policy decisions will almost invariably be enhanced as a consequence of a far-reaching give and take during which underlying premises are challenged and alternate approaches are considered. As such, government secrecy just about guarantees the absence of an optimal decision on the part of our national leaders, oftentimes with tragic consequences for our nation.
The time has come for our nation to put Cold War think behind us once and for all and recognize that by needlessly restricting the free flow of information we are needlessly restricting our government's capability to do what is best in the interest of its citizens.
I recognize that the above, although a lengthy post, is still a rather broad argument. I encourage others to comment, and especially to challenge some of the underlying assumptions contained herein. In future posts, I intend to further elaborate on the basic points of this thesis and to provide specific recommendations as to how to achieve a true paradigm shift with respect to the value and use of government secrecy.
The current Obama Administration review of classification policy will almost certainly produce an incremental adjustment to existing practices.... But it is unlikely to lead to a wholesale replacement of the basic framework of the cold war classification system that has lingered now for more than half a century. The "next generation" of national security information policy is still out of reach.
I agree with Aftergood's assessment, as well as his recommendations for "experimental pilot projects in classification and declassification and related activities" in order to hasten the development "of more efficient and transparent information security policies." However, I believe that they do not address the core challenge with respect to how our government employs the critical national security tool of classification. Specifically, it is still wielded as a blunt instrument with the near total absence of judgment and discernment to the point that it inflicts more harm on our nation than good. Secrecy in government is invoked much too casually with little to no regard to the unintended, but very real and almost inevitable consequences of its employment. The time has come to forsake once and for all the Cold War mindset which continues to serve as the basis for today's classification system.
Secrecy can act like a toxin in the body politic. Much like chemotherapy in the human body, it can have beneficial results when used in an extremely controlled and limited manner. However, neither should be employed lightly as they can easily produce outcomes worse than the ill they are attempting to cure.
In government, secrecy ultimately makes for flawed decisions. It undermines our form of government and facilitates actions inconsistent with our nation’s core values and beliefs. Secrecy in government must be actively avoided and strong policies and oversight must be put in place to limit its use. Secrecy in government should be employed only when disclosure of the information will demonstrably lead to even greater harm to our nation. If we do not take advantage of the current environment and shed the shackles of today’s classification mindset, when will we ever?
I do not make these observations lightly. For those who do not know my background, I spent my 34-year public service career immersed in the arcane field of government secrecy. Like many Americans, I also came to know the value of effective government secrecy in very personal terms through my two sons, both of whom placed themselves in harm's way in service to their country. My eldest son made extensive travels overseas in support of our nation's intelligence efforts. My youngest son was a combat infantry platoon leader during some of the most intense periods of combat in Iraq. In many regards, their well-being depended upon effective government secrecy. I have seen government secrecy work, and I have seen it fail spectacularly, causing grave damage to our nation’s security and overall well-being.
When referring to failures in government secrecy, I am not talking about the absurd examples of classification abuse which many like to rightfully hold up to ridicule. Rather I believe that it can be readily demonstrated that today's classification system continues to do more harm to our national security than it prevents; contributes to the needless squandering of American blood and treasure on an unimaginable scale; results in the death or grave wounding of American military service members who would otherwise not have become casualties of war but for abuses of the classification system; undermines our constitutional form of government and the rule of law; and repeatedly fosters decisions on the part of our national leaders that are flawed and ultimately prove to be detrimental to the overall well-being of our nation's citizens. In short, the excessive use of secrecy by our government has frequently imposed exceptionally grave damage to our national security, the very damage it is intended to preclude. In fact, the indiscriminate use of secrecy has caused more damage to our nation’s well-being than all the espionage cases in our country’s history.
In order to stem this continuing damage to our national security, a new "presumption" must be adopted throughout the government with respect to how information is handled. Specifically, it must be presumed that ALL official information, to include information relating to intelligence sources and methods and other national security matters that is routinely classified today, is subject to immediate disclosure. Withholding based upon classification must become the EXCEPTION, not the norm, and used only when it is clearly demonstrable that the public disclosure of the information would cause greater harm to the national interest than would its withholding from disclosure.
To be clear, what I am addressing herein is the reflexive posture, adopted by almost all in government, to include the three co-equal branches, whereby we consistently genuflect at the altar of "national security" and accept as a given, without the least bit of questioning or introspection, that the withholding of certain types of information, be it relating to intelligence, military, or foreign policy matters, will invariably serve to preclude or minimize damage to our nation's well-being. It is the conventional wisdom in almost every corner, both to the right and the left of the political spectrum, that the withholding of "national security information" from public disclosure is essential to our security and that the practice makes us safer as a nation. No less an advocate of openness in government than Senator Russ Feingold (D-WI) has stated "through the classification system and the common law, we've carved out limited exceptions for highly sensitive factual information about military operations, intelligence sources and methods, nuclear programs and the like. That is entirely appropriate and important to protecting our national security.”
I disagree. I believe we must challenge such reflexive thinking and fundamentally reassess in cold, stark terms the consequences of such reasoning and practices. Specifically, we must closely reexamine what is gained and what is lost by our nation when we employ secrecy in government.
In this regard, I believe a good place to start is in reviewing the recent espionage cases our nation experienced, at least those which entailed the unauthorized disclosure of classified information. Since the classification system is intended to preclude the very real damage to our national security which many of these cases inflicted upon our nation, one means of assessing what we gain and what we lose through government secrecy is to examine the damage to national security that these instances of espionage caused and compare it to the damage to our national security which government secrecy in and of itself has wreaked upon our country and its citizens.Although not exhaustive, the Federal Bureau of Investigation (FBI) web site, as of the date of this posting, lists 14 espionage cases since 2000 which entailed the unauthorized disclosure of classified information. The severity and seriousness of these cases cannot be minimized -- nor can the damage to national security. Nonetheless, I believe it appropriate to use the damage for comparative purposes. The cases, in order of year of arrest, along with a brief synopsis of the damage caused, are as follows:
1. Mariano Faget (2000) - Worked for the Immigration and Naturalization Service (INS) where he had access to confidential information about Cuban defectors and dissidents. After being observed meeting with a representative of the Cuban Interests Section in Miami, he was caught in an FBI sting. He was convicted of espionage, converting government records to his own use, failing to disclose foreign business contacts when applying for a security clearance, and lying to the FBI.
2. George Trofimoff (2000) - Allegedly sold classified material to the Russians while serving as the civilian chief of the U.S. Army Element of the Nuremberg Joint Interrogation Center in Germany from 1969 to 1994. He retired from his Army civilian job in 1995. He was alleged to have passed along to the KGB lists of U.S. intelligence objectives, assessments of Soviet and Warsaw Pact military capabilities and evaluations of the threat posed by Soviet chemical and biological weapons. In 2001, he was convicted of spying for the old Soviet Union.
3. Brian P. Regan (2001) - Worked at the National Reconnaissance Office (NRO) and reportedly attempted to sell classified information to Iraq, Libya, and China. The prosecution sought the death penalty (the first time it would have been used for espionage since Julius and Ethel Rosenberg). While the jury did not impose the death penalty, they did find Regan guilty of three counts of attempted espionage.
4. Ana Belen Montes (2001) - Worked at the Defense Intelligence Agency (DIA) and pleaded guilty to conspiracy to commit espionage for the government of Cuba. In 2007, a DIA counterintelligence official alleged that it was Montes who told Cuban intelligence officers about a clandestine U.S. Army camp in El Salvador. The DIA official, who led DIA's investigation of Montes, named Montes as being directly responsible for the death of a Special Forces Sergeant who was killed at El Paraiso, El Salvador, in 1987 during an attack by Cuban-supported guerrillas. In addition, former Undersecretary of State John Bolton has stated that an official 1998 U.S. government report with significant contributions by Montes concluded that Cuba did not represent a significant military threat to the United States or the region. Bolton alleged that because of Montes' espionage, it was not possible to exclude the possibility that the U.S. government may have overlooked Cuba as a potential threat because of Montes' influence and the way she shaped her reporting at DIA.
5. Robert P. Hanssen (2001) - Was a Special Agent with the FBI. He volunteered to furnish highly sensitive documents to KGB intelligence officers assigned to the Soviet embassy in Washington, DC. Hanssen's activities had links to other, earlier espionage and national security investigations including the Aldrich Ames and Felix Bloch cases. Hanssen allegedly compromised numerous human sources of the U.S. Intelligence Community along with technical intelligence operations. He pleaded guilty to fifteen counts of espionage.
6. Donald K. Keyser (2004) - Is a former Principal Deputy Assistant Secretary of State for East Asian and Pacific Affairs. He pleaded guilty to unlawfully removing classified United States documents from the Department of State and to two counts of making false official statements. From 2002 to September 2004, Keyser had an undisclosed personal relationship with a female Taiwanese national who was employed by the National Intelligence Bureau, which is the foreign intelligence agency of the government of Taiwan.
7. Kenneth Wayne Ford (2004) - Is a former employee of the National Security Agency (NSA). In 2004, NSA officials received a tip that Ford had a box full of its secrets that he was trying to sell to foreign agents. As it turns out, while Ford did have boxes of classified information at his home, there is no indication that he was trying to sell them. He was convicted of one count of unauthorized possession of national defense information and one count of making a false statement when he applied for a job requiring a top secret clearance.
8. Lawrence Franklin (2005) - Is a former Iran desk officer in the Office of the Secretary of Defense at the Pentagon. Franklin was charged along with Steven J. Rosen and Keith Weissman, former employees of the American Israel Public Affairs Committee (AIPAC) with conspiring with each other to unlawfully disclose classified national defense information. Franklin was also charged in the indictment with conspiracy to communicate classified information to an agent of a foreign government. Franklin eventually pleaded guilty to conspiracy to communicate national defense information to persons not entitled to receive it; conspiracy to communicate classified information to an agent of a foreign government; and the unlawful retention of national defense information. I personally reviewed the "classified" evidence involving Franklin when I served as an expert adviser and potential witness for Weissman. I wrote about the experience here. The charges against Rosen and Weissman were eventually dismissed. Franklin's sentence of almost 13 years was eventually reduced to probation.
9. Leandro Aragoncillo (2005) - is a former U.S. Marine and is one of two individuals from Vice President Dick Cheney's Office of the Vice President (OVP) who were eventually charged and convicted of crimes associated with their handling of classified information. Aragocillo pleaded guilty to espionage and with leaking classified information to the regime of a former Filipino president. Also convicted was Michael Ray Aquino, a former deputy director of the Philippines National Police.
10. Noshir S. Gowadia (2005) - Worked for a defense contractor that built the B-2 stealth bomber and helped develop its propulsion system. Gowadia was charged with three counts of illegally transmitting national defense information and three counts of violating the Arms Export Control Act on behalf of the People's Republic of China and others. As of the date of this post, his trial is still pending.
11. Amen Ahmed Ali, Ibrahim A. Omer and Mohamed Al-Rahimi (2006) - Were charged with passing to Yemen classified information received from a government undercover agent. The trial is still pending as of the date of this posting --Al-Rahimi remains at large.
12. Gregg William Bergersen (2008) - Was a weapons policy analyst at the Department of Defense who was charged with passing classified government materials to the People's Republic of China. Much of the information related to the sale of military technology to Taiwan. He pleaded guilty to a single count of conspiracy to disclose national defense secrets.
13. Hassan Abujihaad (2008) - Was serving as a signalman aboard the USS Benfold. He was accused of sharing classified details about the vulnerabilities and movements of the ship to which he was assigned, and others. He was convicted of espionage and material terrorism support.
14. Harold & Nathaniel Nicholson (2009) - Harold J. Nicholson—a former CIA employee—and his 24-year-old son Nathaniel were charged with two counts of conspiracy, one count of acting as an agent of a foreign government (in this case, Russia), and four counts of money laundering. Harold Nicholson was already in prison, serving a more than 23-year sentence for his 1997 conviction on charges of conspiring to commit espionage for the Russian Federation. While in prison, Nicholson allegedly continued his attempts to maintain his relationship with the Russians through his son. As of the date of this posting, their trial is still pending and Nathaniel Nicholson has been granted pre-trial release.
Again, I do not intend to diminish the severity of most of the cases outlined above, or the damage that they inflicted upon the national security. I most certainly do not intend in any way to condone violations of trust or other covert acts intended to harm our nation or to provide advantage to foreign powers. However, I do believe that it is useful to compare the damage that occurred to our national security as a consequence of the above cases with the damage to national security that occurred as a direct consequence of the government's imposition of classification controls on official information in the following instances:
1. Bin Laden Determined to Strike in US – It is difficult to read this previously TOP SECRET document and be able to justify its classification. Ironically, according to the current policy of the Director of National Intelligence, if our government had its way, since this information appeared in a President's Daily Brief (PDB), it would never see the light of day. It is only as a direct consequence of the efforts of the "9-11 Commission" that the document was eventually publicly released. Even the redacted portions in the released version refer to information we received from foreign intelligence services. Our mindless, reflexive insistence that such information be protected without any forethought or deliberation was covered in this earlier post. Imagine a scenario whereby the information in this PDB was not shared solely with President Bush while he was on vacation in Crawford, TX. Rather, imagine if the contents of this PDB had been subject to public dissemination. It would have undoubtedly been subject to news and editorial coverage in the media. It may very well have also been the subject of Congressional oversight hearings. You can be assured that it would have been the subject of inquiries from everyday Americans who wanted to know what their government was doing in response to such a report. At the very least, we may have been able to, at least inadvertently, dissuade Al-Qaeda from launching the attacks when they did. At best, our intelligence agencies would have been better able to "connect the dots" since rather than depending upon the ineffective sharing of classified information between agencies, they would have simply had to pick up the newspaper and respond to media and Congressional inquiries to understand the true nature of the threat. Damage to national security: Worst foreign attack on the U.S. in the history of the republic; 2,974 deaths, excluding the 19 hijackers, trillions of dollars in losses, incalculable impact upon the health of untold numbers of Americans and upon the overall economy; led to Afghanistan war which continues to this date at the cost of 1,284 coalition deaths including 768 Americans, with at least 3,372 U.S. personnel wounded in action as of August 6, 2009. In terms of treasure, it is estimated the Afghanistan War will have cost almost $440,000,000,000.00 by the end of FY 2009.
2. National Intelligence Estimate (NIE): Iraq's Continuing Programs for Weapons of Mass Destruction - Prior to their October 2002 vote to authorize the use of military force against Iraq, in order to better inform their deliberations some members of Congress requested that an NIE be prepared on Iraq’s programs for weapons of mass destruction. The NIE and its key judgments, in addition to being wrong, were classified. The NIE was delivered to Congress the week before its vote and, since it was classified, in order to read it members had to go to a special room and sign a log. It’s been variously reported how many Senators actually read the classified report prior to authorizing the President to take our nation to war, but the publication The Hill quoted one senior congressional intelligence staffer as saying that “You can say with 100 percent certainty it’s less than 10.” How many more would have read it had it not been classified is impossible to say – but we can only hope that it would have been more than 10. And what would they have learned if they had read the original NIE rather than rely upon the unclassified white paper which was released by the Director of Central Intelligence at the same time and which was intended as an unclassified version of the NIE? According to the Senate report on pre-war intelligence on Iraq, they would have learned of the State Department's Bureau of Intelligence and Research alternative view on whether Iraq would have a nuclear weapon this decade and that the Department of Energy dismissed attempts by Iraq to obtain high-strength aluminum tubes as being part of Iraq’s effort to reconstitute its nuclear program. They would also have learned that while the key judgments were almost identical in layout and substance in both papers, the key judgments of the unclassified paper were missing many of the caveats that were used in the classified NIE. As concluded by the Senate Select Committee on Intelligence, removing caveats such as "we judge" or "we assess" changed many sentences in the unclassified paper to statements of fact rather than assessments – an egregious act since a cardinal rule of the declassification process is to ensure that it does not alter the substance of the information released. What is equally disturbing is the rationale offered by drafters of the classified NIE as to why the unclassified paper omitted the fact that the intelligence community’s own nuclear experts at the Department of Energy did not agree with the NIE’s conclusion regarding the aluminum tubes, even though the allegation was being used by some of our leaders to stir up images of mushroom clouds appearing somewhere over the United States. Again, according to the Senate Select Committee on Intelligence, officials at the National Intelligence Council indicated that they did not refer to disagreements between intelligence agencies in unclassified documents out of concern that the country being discussed would be “tipped off to a potential cover story.” Such a concern can understandably justify classification in some rare instances. However, to use it as a rationale for a decision which ultimately led to the production of a paper which has been judged as being misleading to both the Congress and the American people, in as grave a matter as a decision to unleash, by choice, the brutality of war, is a perfect example of how the failure to balance the damage that results from disclosure, with the damage that results from classifying, can have exceedingly tragic consequences for our nation. Damage to national security: The death of more than 4,200 and the wounding of more than 30,100 American service members, the death of up to a 100,000 or more Iraqis, hundreds of thousands of American troops sent into the trials of combat (many for multiple tours), the expenditure of over $1,600,000,000,000.00 by the end of FY 2009 belonging to our country's taxpayers (both today and for generations to come), and the recruitment of countless future terrorists willing to endure "martyrdom" in order to inflict harm upon our nation.
3. Powell’s Presentation to the United Nations: The lead up to the Iraq War provides another excellent example of how even our own intelligence community can be hampered by excessive and needless classification and compartmentalization. Again, 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 – according to Los Angeles Times reporter Bob Drogin who wrote a book on Curveball – is that at the time of the U.N. presentation, and even not until well after the war had begun, the CIA did not even know the name of the source whose fabrications served as the basis upon which our nation chose to go to war. And, according to Drogin, the reason why is that German intelligence refused to share his name. They did so simply because they could; it was “pride of service”, a form of one-upmanship. Thus, our reflexive insistence that the identity of all intelligence sources regardless of the circumstances remain secret allowed "drunken liar" to lead this country into a war of choice. Damage to national security: See item 3 above.
4. The "Torture Memos" - I wrote about secrecy as an enabler of evil here and about a specific Office of Legal Council (OLC) pure legal, yet classified, analysis of interrogation techniques here. None of these memos would have been written in the manner they were, and used to support the policies they did, unless the authors could be assured of the memos’ secrecy and the public’s continuing ignorance of their content. I have testified to Congress that the March 14, 2003, OLC memorandum represents one of the worst abuses of the classification process that I had seen during my entire Federal career. While only the official who inappropriately assigned classification markings to the OLC memo in the first place can attest to the reasons for that decision, the effects of it are visible to all. In addition to keeping the information in the memo from the American people and the two co-equal branches of government, use of classification in this instance is a prime example of how classification is used, not for purposes of national security, but rather as a bureaucratic weapon to blunt potential opposition. Reportedly, top lawyers for the military services did not receive a final copy of the OLC memo, in part because they opposed the harsh interrogation techniques endorsed in the memo, as well as the lack of transparency about how we handle enemy combatants. Our military lawyers fully recognize that our young men and women we send into battle as combatants are subject to capture and that we needlessly increase their exposure to potential abuse in this and future conflicts by ceding the moral high ground in the treatment of detainees. This is not to say that our enemy in the current conflict is anything but brutal; however, the first pillar of our national security strategy is to not reduce ourselves to the level of our adversary. Damage to national security: We tortured only because we thought we could engage in the practice while at the same time deny its use and keep it secret. Based upon repeated false statements on the part of our national leaders that "we do not torture," it is reasonable to believe that we would never have embarked on this dark chapter in our nation's history had the deliberations on this topic been public, and our leaders knew that. Otherwise, there was no rationale to have classified these interrogation "techniques" and especially the shoddy legal analysis which served as their underpinning. The stated rationale -- not to allow adversaries the ability to know and thus train to resist such techniques, defies common sense. How do you train to resist waterboarding? Also, we can only hope that the concerns of our military JAGs do not come to fruition and that current and future American captives do not find themselves subjected to the same torture as outlined in these memos. Finally, our nation now has a significant credibility problem as we attempt to challenge other nations on human rights abuses.
5. Warrantless Wiretaps: Last month, 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 from Congress, the courts and the American people violations of law and to engage in a cover-up – an abuse which our system of checks and balances is intended to preclude. This much is for certain:
a. The President's program violated the provisions of the Foreign Intelligence Surveillance Act (FISA), a factual 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.
b. 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 warrantless 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.
c. 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.
Damage to national security: The secrecy of the program, in addition to facilitating law-breaking and undermining our Constitutional form of government caused significant harm to our counterterrorism programs as well. The IGs' report concluded that "extraordinary and inappropriate" secrecy about the warrantless eavesdropping program undermined its effectiveness as a terrorism-fighting tool. Furthermore, had Ashcroft, Comey, Mueller and other Department of Justice officials resigned, an intention known to others to include Cheney but was unknown to Bush, our country would most likely have experienced a constitutional crises the likes of which was not seen since the "Saturday Night Massacre" of the Nixon administration, which eventually contributed in a very significant way to his subsequent resignation in face of near certain impeachment.
6. Guantanamo Bay Detention Facility: Our current national security strategy recognizes that we are engaged in an ideological struggle against many forms of extremism. In fact, the first pillar of that strategy as articulated by the prior administration is promoting freedom, justice, and human dignity, which includes offering people throughout the world a positive vision rooted in America's beliefs, thereby isolating and marginalizing violent extremists. This strategy reflects our success in ending the Cold War, not by defeating the Soviet Union militarily, but rather by promoting American ideals and values which ultimately led to the demise of the most formidable foe our nation has ever confronted. Yet, by maintaining this ill-advised detention facility, we perpetuate one of the greatest sources of continued anti-American sentiment today. As I wrote in this earlier post, it is the reflexive employment of classification more than anything else which precludes our country from addressing this issue in an informed manner. The void left by the absence of substantive information has been filled with irrational fear based upon deliberate and repeated misrepresentations by our nation's leaders that this facility houses the "worst of the worst." This claim is belied by facts as noted in a recent post by Glenn Greenwald who wrote: two more Guantanamo detainees … were ordered released by federal judges on the ground that there was insufficient evidence to justify their detention. The Washington Independent's Daphne Eviatar notes this amazing fact: "In 28 of 33 Gitmo detainee cases heard so far, federal judges have found insufficient evidence to support keeping them in prison." Virtually all of those detainees were held for many years without charges and with no opportunity for judicial review. Once they finally got into a court, federal judges (including Bush-43 appointed judges) in the vast majority of cases concluded there was virtually no credible evidence ever to justify their detention. Damage to national security: We have become paralyzed as a nation to the point that our national leaders and the American people cannot have an informed discourse in order to resolve the status of the detention facility at Guantanamo Bay. Thus, rather than providing the world populace with a positive vision rooted in American beliefs we instead provide extremists worldwide with a tremendous recruiting bonanza. We must recognize that we are actually assisting our nation's adversaries in recruiting far too many "martrys" (actually, one is too many), ready to die in order to inflict harm upon Americans. Montes the spy was rightfully condemned for compromising information that may well have led to the death of an American soldier in El Salvador. How many countless American soldiers have been killed or wounded in Iraq and Afghanistan by an individual recruited and motivated as a direct result of our adversaries’ exploitation of our Guantanamo Bay detention policy?
The above is by no means intended to serve as an exhaustive list of instances this decade (let alone throughout our history) wherein government claims of secrecy have actually endangered or caused extraordinary grave damage to our national security. I will write about additional examples in future posts. However, I believe the above clearly establishes that during the current decade, far greater damage to national security occurred as a consequence of the classification of information as opposed to the damage that resulted from compromises through espionage. Continuing my earlier analogy regarding toxins, it is as if for a disease that has a mortality rate of 20%, we came up with a cure that has a mortality rate of 40%. Sooner or later, we must face up to the fact that the cure is worse than the ill.
In furtherance of the above, a telling comparison involves the espionage case of Brian Regan wherein our government wanted to put to death a man who merely attempted to pass classified information to foreign powers. The damage that Regan inflicted upon our nation is less than miniscule when compared to the overwhelming loss of blood and treasure our citizens have endured this decade alone as a result of many decisions by our national leaders that proved to be extraordinarily flawed due, in large part, to the influence of the current classification system. I find it incomprehensible as to how in the former instance, our government literally proposes to execute someone, while in the latter instance our government is perfectly content to continue “business as usual” and allow the toxic power of secrecy to continue to permeate the decision-making process of our national leaders.
While I do want to shakeup conventional thinking on this topic, I do not intend to replace one blunt instrument with another. I accept the need for classification in exceedingly limited circumstances. However, I firmly believe that that overwhelming majority of information classified today, upwards of 90% or more, does not warrant being kept secret. The remaining 5-10% of today’s classified information, especially in military matters, should remain classified. In fact, some aspects of how the military treats classification can serve as a model for the rest of the government, to include the intelligence community. Unlike other countries, we recognize that to consider ALL military matters classified is inconsistent with our form of government and not conducive to facilitating the type of public discourse our society must continually have with respect to the proper maintenance and use of military force. Nonetheless, we do consider ALL, or almost all, applications of intelligence sources and methods to be classified, which, in turn, results in the classification of far too many policy deliberations and decisions. We do this despite the recognition that secrecy comes at a price – sometimes a deadly price – oftentimes through its impact upon the decision-making process. Policy decisions will almost invariably be enhanced as a consequence of a far-reaching give and take during which underlying premises are challenged and alternate approaches are considered. As such, government secrecy just about guarantees the absence of an optimal decision on the part of our national leaders, oftentimes with tragic consequences for our nation.
The time has come for our nation to put Cold War think behind us once and for all and recognize that by needlessly restricting the free flow of information we are needlessly restricting our government's capability to do what is best in the interest of its citizens.
I recognize that the above, although a lengthy post, is still a rather broad argument. I encourage others to comment, and especially to challenge some of the underlying assumptions contained herein. In future posts, I intend to further elaborate on the basic points of this thesis and to provide specific recommendations as to how to achieve a true paradigm shift with respect to the value and use of government secrecy.
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