Updated below:
In today's Secrecy News, Steve Aftergood provides access to an August 4 draft of the executive order (pdf) that was prepared by an interagency task force in response to a May 27 memorandum from the President. As noted in Secrecy News, the draft is still subject to revision, and has not yet been formally transmitted to the White House for review and approval.
Aftergood provides an excellent analysis of the draft and I agree it has a number of notable improvements to the current framework. I will not repeat such observations here. However, there is one point he makes that I believe merits further expansion. Specifically, the draft order affirms that "no agency may declassify information that originated in another agency... without the consent of the originating agency" (section 3.1f). Similarly, the order goes on to state that "... records containing classified information that originated with other agencies or the disclosure of which would affect the classified interests of activities of other agencies ... shall be identified ... for referral to those agencies" (section 3.3(d)(3)). Finally, even the National Declassification Center proposed in this draft order at the specific direction of the President will not have the authority to declassify such information but the information will instead be "referred" back to the "originating agency" (section 3.3(d)(3)(A).
This provision, rather than "demonstrating our commitment to open government" as heralded in the preamble to the draft order, actually hearkens back to the era of Ronald Reagan who set forth one of the most regressive classification policies in history when he promulgated Executive Order (E.O.) 12356, the predecessor to Bill Clinton's E.O. 12958. In Reagan's order, "information shall be classified as long as required by national security considerations" (section 1.4(a)) and would be marked with " the date or event for declassification, or the notation 'Originating Agency's Determination Required,'" commonly referred to as OADR (section 1.5(a)(4)).
Clinton's 1995 order withdrew this significant impediment to the timely declassification of information and, except for information that revealed the identity of a confidential human source or a human intelligence source, required that a specific date or event be established for the declassification of all classified information, even that information originally exempt from automatic declassification. Furthermore, once the specific date or event for declassification was established, no further authorization was required from the "originating agency."
However, George W. Bush's revision to E.O. 12958 in 2003 effectively gutted this provision and led to a de facto re-institution of OADR. Specifically, the Bush order stated that "records containing information that originated with other agencies or the disclosure of which would affect the interests or activities of other agencies shall be referred for review to those agencies and the information of concern shall be subject to automatic declassification only by those agencies." These words are echoed practically verbatim in the proposed Barrack Obama order.
In carrying forth this particular provision into the rewrite, just about every other declassification provision in the proposed Obama order becomes moot. Nothing of substance gets declassified unless the originating agency determines that it should be declassified. Not only is this concept regressive, it also defies common sense.
For example, thousands of times every day, individuals from one agency will use "information that originated with other agencies or the disclosure of which would affect the interests or activities of other agencies" when creating documents. For example, an analyst at DoD may routinely create documents which use information originated by the CIA, or otherwise affects the CIA's interests. Sometimes the newly created documents created are treated as unclassified; other times they are treated as classified. How those documents are treated is entirely dependent upon the DoD analyst, the individual creating the documents, not the agency that originated the information or whose interests are affected by the information.
In this example, the entire "front-end" of the classification system, when the information is most current and presumably most sensitive, is based upon the premise that whenever the analyst creates a document, even if the analyst uses information belonging to or affecting the interests of another agency, the analyst will take the proper action to classify or not to classify the record. The analyst's actions in this regard will be based upon classification guidance provided by the agency to which the information belongs or who is otherwise affected by the information -- in this case, the CIA. The analyst is never required to submit the newly created document to the CIA for their review prior to promulgation to ensure that the classification designation is correct.
Notwithstanding the above, in this example, decades later, even though the DoD analyst created the document, per the proposed Obama order, neither that analyst, nor any other DoD official would be permitted to declassify the document, even with declassification guidance provided by the CIA. Instead, while the classification system employs a practical, risk management approach to classification on the "front-end" employing delegation through classification guidance, it refuses to mandate the same delegation through classification guidance on the "back-end," when the information is presumably less sensitive.
While this proposed order is a long way from true reform of the existing classification system, it should, at the very least, not represent a return to the regressive Reagan-era approach to declassification. President Obama would be well-served if he was presented with a proposal that, as a minimum, permitted agencies, to include the National Declassification Center, to declassify information based upon declassification guidance provided by the agency that originated the information or whose interests are otherwise affected by the information. Such a risk management approach has consistently worked for the "front-end"of the classification process; there is no reason why it cannot work for the "back-end" of the process.
As noted previously, the President has committed to making his administration the most open and transparent in history. Hopefully, he was not referring only to the history of this millennium.
Update:
The proposed new order regarding classification referenced above is in response to the President's May 27 memorandum which, among other things, directed that any recommendations and proposed revisions address:
Appropriate classification, safeguarding, accessibility, and declassification of information in the electronic environment, as recommended by the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction and others (emphasis added).
From the Report of the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction
The DNI should move toward a culture of “stewardship” of intelligence information instead of ownership. Federal government information belongs to the nation and is entrusted to the Intelligence Community in order to pursue the nation’s best interest.
From the report of the "9-11 Commission:"
The culture of agencies feeling that they own information they gathered at taxpayer expense must be replaced by a culture in which the agencies instead feel they have a duty to the information -- to repay taxpayers' investment by making that information available.
From the proposed new order in response to the President's direction:
No agency may declassify information that originated in another agency... without the consent of the originating agency. ... Records containing classified information that originated with other agencies or the disclosure of which would affect the classified interests of activities of other agencies ... shall be identified ... for referral to those agencies.
Perhaps some agencies didn't get the memo?
Tuesday, September 29, 2009
Thursday, September 24, 2009
New State Secrets Policy: Fatal Flaws Unworthy of Support
Yesterday, the Obama administration released details of a "new policy" with respect to the invocation of the state secrets privilege. I wrote about that development here.
Last year, I had the privilege of joining over 350 other open government advocates in endorsing the recommendations of the Moving Toward a 21st Century Right-to-Know Agenda from November 2008. In this regard, I was also a member of the working group which developed the initial draft of the section dealing with "National Security and Secrecy."
This section highlighted the increasing use by the Executive branch of the state secrets privilege, a common law rule of evidence, to secure dismissal of litigation brought to protect important constitutional and statutory rights and that in doing so, the Executive is obscuring governmental polices that abridge those rights. The report went on to state that:
Invocation of the state secrets privilege is entirely in the hands of the executive branch. It decides whether to assert it in a particular case, the stage of the litigation in which the privilege will be asserted, and the facts that it will seek to shield from disclosure by invoking the privilege. It also decides whether to assert that a case must be dismissed in its entirety to protect the privileged information or whether to instead agree that the case can go forward without the privileged information or with substituted information.
In this reagrd, the report went on to make a number of short and long-term recommendations. Specifically:
Short-Term Recommendations:
1. The president should declare that it is the policy of his administration never to invoke the state secrets privilege to cover up illegal or unconstitutional governmental conduct and that the state secrets privilege will be invoked only as a last resort and only by the head of an agency who has determined that the public interest in disclosure of the information is outweighed by the risk to national security. The president should further declare that it is the policy of his administration to recognize that individuals must have a judicial remedy for violations of their constitutional rights and that invocations of the state secrets privilege must be consistent with that recognition. He should order the Attorney General to convene an interagency working group to implement the policy and direct the Department of Justice to report invocations of the state secrets privilege to Senate and House Committees on the Judiciary. The new policy on use of state secrets privilege should recognize that:
Long-Term Recommendation:
3. The president should work with the relevant committees of Congress to redress improper invocations of the privilege by the previous administration and to ensure that future invocations of the state secrets privilege are properly limited. Many groups believe the only effective long term solution to stem abuses of the state secrets privilege is enactment of legislation establishing checks and balances on invocation of the privilege, such as Sen. Kennedy's State Secrets Protection Act (S. 2533) or Rep. Nadler's State Secret Protection Act (H.R. 5607). Other groups believe that as courts created the state secrets privilege, the responsibility to exercise oversight and establish boundaries for the privilege must also fall to the courts. Any state secrets legislation that is pursued should codify the new policy described in (1 above) should be a collaborative effort between the president and Congress, should be informed the results of the interagency review called for in (1 above) and should not preclude the courts from exercising their own responsibility to establish boundaries for the privilege.
A principal sponsor of the 21st Century Right-to-Know Agenda, the respected public advocacy group OMB Watch, yesterday indicated their "strong support" for the new state secrets privilege policy. In this post, OMB Watch indicated that "this unparalleled policy echoes many of the recommendations made by ... the 21st Century Right-to-Know Agenda". I disagree and I believe that a plain text reading of the agenda's recommendations and the administration's memo clearly indicates a substantial disconnect between the two. In a subsequent post, OMB Watch appears to clarify their initial position but still maintains that "the result is a net positive." I must continue to disagree.
For me, the absence of judicial review is a fatal flaw in this policy. Furthermore, the administration's "new" policy is clearly calculated to forestall legislation in this area, and with the "strong support" of respected organizations such as OMB Watch, it has a very good chance of accomplishing just this (especially in view of Senator Leahy's comments yesterday). Therefore, in addition to the fatal flaw above, this policy will be just a pen stroke away from being revised at some future time by either this administration or some future administration.
Any reforms such as the above must be institutionalized through legislation and must include judicial review. The current administration did not even see fit to institutionalize this policy through Executive order. As such, its just words on paper.
I believe support of this policy is a mistake and, as an original endorser of the 21st Century Right to Know Agenda, is not in consonance with its recommendations. I encourage all individuals and organizations who support open government to speak out against this new policy.
We must expect more from this administration. If not them, then who?
Last year, I had the privilege of joining over 350 other open government advocates in endorsing the recommendations of the Moving Toward a 21st Century Right-to-Know Agenda from November 2008. In this regard, I was also a member of the working group which developed the initial draft of the section dealing with "National Security and Secrecy."
This section highlighted the increasing use by the Executive branch of the state secrets privilege, a common law rule of evidence, to secure dismissal of litigation brought to protect important constitutional and statutory rights and that in doing so, the Executive is obscuring governmental polices that abridge those rights. The report went on to state that:
Invocation of the state secrets privilege is entirely in the hands of the executive branch. It decides whether to assert it in a particular case, the stage of the litigation in which the privilege will be asserted, and the facts that it will seek to shield from disclosure by invoking the privilege. It also decides whether to assert that a case must be dismissed in its entirety to protect the privileged information or whether to instead agree that the case can go forward without the privileged information or with substituted information.
In this reagrd, the report went on to make a number of short and long-term recommendations. Specifically:
Short-Term Recommendations:
1. The president should declare that it is the policy of his administration never to invoke the state secrets privilege to cover up illegal or unconstitutional governmental conduct and that the state secrets privilege will be invoked only as a last resort and only by the head of an agency who has determined that the public interest in disclosure of the information is outweighed by the risk to national security. The president should further declare that it is the policy of his administration to recognize that individuals must have a judicial remedy for violations of their constitutional rights and that invocations of the state secrets privilege must be consistent with that recognition. He should order the Attorney General to convene an interagency working group to implement the policy and direct the Department of Justice to report invocations of the state secrets privilege to Senate and House Committees on the Judiciary. The new policy on use of state secrets privilege should recognize that:
- Judges may review in camera and ex parte evidence claimed to be privileged;
- The privilege only extends to evidence when a judge has determined that there is a reasonable likelihood that disclosure would cause substantial harm to national defense or diplomatic relations;
- Discovery of non-privileged information is permitted in cases in which the privilege has been invoked;
- Special masters and/or technical experts may be used to assist with evaluating privilege claims; and
- Direct that agencies should cooperate in crafting substitutes for privileged information.
Long-Term Recommendation:
3. The president should work with the relevant committees of Congress to redress improper invocations of the privilege by the previous administration and to ensure that future invocations of the state secrets privilege are properly limited. Many groups believe the only effective long term solution to stem abuses of the state secrets privilege is enactment of legislation establishing checks and balances on invocation of the privilege, such as Sen. Kennedy's State Secrets Protection Act (S. 2533) or Rep. Nadler's State Secret Protection Act (H.R. 5607). Other groups believe that as courts created the state secrets privilege, the responsibility to exercise oversight and establish boundaries for the privilege must also fall to the courts. Any state secrets legislation that is pursued should codify the new policy described in (1 above) should be a collaborative effort between the president and Congress, should be informed the results of the interagency review called for in (1 above) and should not preclude the courts from exercising their own responsibility to establish boundaries for the privilege.
A principal sponsor of the 21st Century Right-to-Know Agenda, the respected public advocacy group OMB Watch, yesterday indicated their "strong support" for the new state secrets privilege policy. In this post, OMB Watch indicated that "this unparalleled policy echoes many of the recommendations made by ... the 21st Century Right-to-Know Agenda". I disagree and I believe that a plain text reading of the agenda's recommendations and the administration's memo clearly indicates a substantial disconnect between the two. In a subsequent post, OMB Watch appears to clarify their initial position but still maintains that "the result is a net positive." I must continue to disagree.
For me, the absence of judicial review is a fatal flaw in this policy. Furthermore, the administration's "new" policy is clearly calculated to forestall legislation in this area, and with the "strong support" of respected organizations such as OMB Watch, it has a very good chance of accomplishing just this (especially in view of Senator Leahy's comments yesterday). Therefore, in addition to the fatal flaw above, this policy will be just a pen stroke away from being revised at some future time by either this administration or some future administration.
Any reforms such as the above must be institutionalized through legislation and must include judicial review. The current administration did not even see fit to institutionalize this policy through Executive order. As such, its just words on paper.
I believe support of this policy is a mistake and, as an original endorser of the 21st Century Right to Know Agenda, is not in consonance with its recommendations. I encourage all individuals and organizations who support open government to speak out against this new policy.
We must expect more from this administration. If not them, then who?
Wednesday, September 23, 2009
Heads I Win; Tails You Lose
Updated below - update II:
According to the New York Times today, the administration will soon announce a new policy regarding claims to the state secrets privilege by the Executive branch. In essence, before the Executive branch can make such an assertion, it must convince itself that it is correct.
Is it possible to lose an argument with yourself? Apparently, the Obama administration wants us to think so and assure us that this new policy constitutes real reform in the arena of official secrecy. They are wrong on so many counts.
First, the President's authority to restrict the dissemination of information in the interest of national security is not an absolute authority that belongs to the President alone, such as the power to pardon. In fact, nowhere is this authority enumerated in the Constitution. Instead, all three co-equal branches of the Federal government have agreed that this authority is inferred by virtue of the President's Article II authority as commander-in-chief of the armed forces and as chief executive responsible for foreign relations. However, the President's constitutional authority in these areas is not absolute -- it is shared with the Congress.
Thus, it is essential that any assertion that the state secrets privilege applies in a specific instance be subject to independent review by the Courts. According to the Times, by virtue of the administration's new policy:
A judge could request access to particular pieces of underlying evidence. The policy is silent on whether the government would comply, and officials said such requests would be evaluated on a case-by-case basis. One of the controversies surrounding the privilege is that sometimes judges accept executive assertions about classified evidence without independently examining it.
The administration apparently anticipates that most if not all judges will be more than willing to simply accept assertions by the Executive. The Congress cannot allow this to happen and must press on to establish a statutory framework for invocation of this privilege which includes an independent judicial review.
The most compelling justification for such an approach are the results of habeas corpus hearings for detainees at Guantanamo following Executive branch loses in both the Hamdan and Boumediene Supreme Court cases. For years, both the Executive and the Congress had resisted providing due process to such detainees on grounds that classified intelligence which could not be disclosed even to judges behind closed doors proved that such detainees were "the worst of the worst." After being compelled by the judiciary to provide due process, in the 33 cases heard to date in which an independent review of the classified national security information was conducted by the courts, in 28 of the cases the presiding judge ruled that the government's evidence was insufficient to legally justify continued detention.
With a "batting average" of .150, the Executive branch couldn't even secure a position in the lineup of the Washington Nationals.
Our money may say "In God We Trust." When it comes to Executive assertions of official secrecy, our motto must be "Show Me (or at least the judge) the Evidence!
Update:
The Department of Justice (DoJ) just released a copy of the Attorney General's memo governing new policies and procedures for invoking the state secrets privilege. Curiously, the press release accompanying the memo states:
Facilitation of Court Review – The policy ensures that before approving invocation of the state secrets privilege in court, the Department must be satisfied that there is strong evidentiary support for it. In order to facilitate meaningful judicial scrutiny of the privilege assertions, the Department will submit evidence to the court for review.
Notwithstanding the above assertion in the DoJ press release, there is nothing in the memo which address facilitating court review. Instead, a footnote acknowledges that "it is also possible that a court may require the Government to satisfy the standards for invoking the privilege in criminal proceedings. ... In such instances, requests to submit filings to satisfy that standard shall be directed to the National Security Division."
So, we have a press release that is not supported by the underlying evidence i.e. the memo. Yet, we are supposed to just trust their assertions?
Update II:
According to statistics compiled by David H. Remes, a habeas lawyer, about 200 detainees have filed suit under habeas corpus through the courts. The government has lost 30 of 38 habeas cases in U.S. District Court, with the judges often citing a lack of evidence to justify continued incarceration. As such, Executive branch lawyers are now "batting" .210. (h/t Glenn Greenwald)
According to the New York Times today, the administration will soon announce a new policy regarding claims to the state secrets privilege by the Executive branch. In essence, before the Executive branch can make such an assertion, it must convince itself that it is correct.
Is it possible to lose an argument with yourself? Apparently, the Obama administration wants us to think so and assure us that this new policy constitutes real reform in the arena of official secrecy. They are wrong on so many counts.
First, the President's authority to restrict the dissemination of information in the interest of national security is not an absolute authority that belongs to the President alone, such as the power to pardon. In fact, nowhere is this authority enumerated in the Constitution. Instead, all three co-equal branches of the Federal government have agreed that this authority is inferred by virtue of the President's Article II authority as commander-in-chief of the armed forces and as chief executive responsible for foreign relations. However, the President's constitutional authority in these areas is not absolute -- it is shared with the Congress.
Thus, it is essential that any assertion that the state secrets privilege applies in a specific instance be subject to independent review by the Courts. According to the Times, by virtue of the administration's new policy:
A judge could request access to particular pieces of underlying evidence. The policy is silent on whether the government would comply, and officials said such requests would be evaluated on a case-by-case basis. One of the controversies surrounding the privilege is that sometimes judges accept executive assertions about classified evidence without independently examining it.
The administration apparently anticipates that most if not all judges will be more than willing to simply accept assertions by the Executive. The Congress cannot allow this to happen and must press on to establish a statutory framework for invocation of this privilege which includes an independent judicial review.
The most compelling justification for such an approach are the results of habeas corpus hearings for detainees at Guantanamo following Executive branch loses in both the Hamdan and Boumediene Supreme Court cases. For years, both the Executive and the Congress had resisted providing due process to such detainees on grounds that classified intelligence which could not be disclosed even to judges behind closed doors proved that such detainees were "the worst of the worst." After being compelled by the judiciary to provide due process, in the 33 cases heard to date in which an independent review of the classified national security information was conducted by the courts, in 28 of the cases the presiding judge ruled that the government's evidence was insufficient to legally justify continued detention.
With a "batting average" of .150, the Executive branch couldn't even secure a position in the lineup of the Washington Nationals.
Our money may say "In God We Trust." When it comes to Executive assertions of official secrecy, our motto must be "Show Me (or at least the judge) the Evidence!
Update:
The Department of Justice (DoJ) just released a copy of the Attorney General's memo governing new policies and procedures for invoking the state secrets privilege. Curiously, the press release accompanying the memo states:
Facilitation of Court Review – The policy ensures that before approving invocation of the state secrets privilege in court, the Department must be satisfied that there is strong evidentiary support for it. In order to facilitate meaningful judicial scrutiny of the privilege assertions, the Department will submit evidence to the court for review.
Notwithstanding the above assertion in the DoJ press release, there is nothing in the memo which address facilitating court review. Instead, a footnote acknowledges that "it is also possible that a court may require the Government to satisfy the standards for invoking the privilege in criminal proceedings. ... In such instances, requests to submit filings to satisfy that standard shall be directed to the National Security Division."
So, we have a press release that is not supported by the underlying evidence i.e. the memo. Yet, we are supposed to just trust their assertions?
Update II:
According to statistics compiled by David H. Remes, a habeas lawyer, about 200 detainees have filed suit under habeas corpus through the courts. The government has lost 30 of 38 habeas cases in U.S. District Court, with the judges often citing a lack of evidence to justify continued incarceration. As such, Executive branch lawyers are now "batting" .210. (h/t Glenn Greenwald)
90% Reduction? How about 98%!
Updated Below:
The Washington Post today has an article on how they:
agreed to a one-day delay in publicizing the report by Gen. Stanley A. McChrystal, the top U.S. and NATO commander in Afghanistan, and that the paper's top editor engaged in a lengthy discussion Sunday with three top Defense Department officials in a meeting at the Pentagon.
... officials strongly objected to the publication of the full report, telling (Post representatives) in a conference call on Saturday that "if we publish it as is, it could endanger the lives of troops."
The Washington Post today has an article on how they:
agreed to a one-day delay in publicizing the report by Gen. Stanley A. McChrystal, the top U.S. and NATO commander in Afghanistan, and that the paper's top editor engaged in a lengthy discussion Sunday with three top Defense Department officials in a meeting at the Pentagon.
... officials strongly objected to the publication of the full report, telling (Post representatives) in a conference call on Saturday that "if we publish it as is, it could endanger the lives of troops."
After the Pentagon meeting Sunday with (Post representatives), administration officials "did a wholesale declassification of 98 percent" of the document, ... while The Post agreed to withhold certain operational details.
Since neither the Post nor the Pentagon has released a true redacted version of the original report, it is impossible to independently confirm the Post's representation that the public, unclassified version of the report represents 98% of the original document. It is noteworthy that the Pentagon did not release a declassified version of the original report and instead reissued the report in an unclassified format. If they had declassified the report as written with redactions, the original classification markings would be readily available for all to see, as would the amount of information redacted.
It would be exceedingly useful if either the Post or the Pentagon would release a true, redacted copy of the original report. Not only then would all be able to confirm the Post's representation that only 2% of the document remained classified, but it would also be able to ascertain how restrained or unrestrained McChrystal's command was in applying classification to the original report. All too often, the phrase "endanger the lives of troops" is bandied about too freely as an excuse for the government to restrict the dissemination of information of critical importance to the nation's citizenry who are expected to bear the burden as the Afghan War enters its 9th year.
As McChrystal himself states in the "Commander's Summary" section (page 1-3) as well as elsewhere in the report when setting forth a new strategy; "These concepts are not new." There is absolutely nothing in the unclassified version of the report that has not been said before by either McChrystal or other national leaders, let alone any information that can come close to endangering the lives of the troops. What truly endangers the troops' lives is the fact that after eight years of war, our national political and military leaders are still floundering as they attempt to craft a strategy to achieve success in Afghanistan.
Rather than attempting to conceal the abysmal state of our failed strategy in Afghanistan, the administration would be better served to ensure the widest possible dissemination of this information to ensure the fullest debate possible as to whether or not this nation is to continue to engage in the brutality of war in that part of the world. Public debate about issues relating to health care reform is well and good, but national security policy decisions whose true costs in both blood and treasure dwarf anything on the domestic front deserves as much, if not more, engagement with the American people in an honest dialogue as to what has gone wrong in the past and what is the likelihood of achieving success in the future. I cannot think of a more fundamental decision that should never be made by our national leaders behind closed doors.
Furthermore, in an earlier post I set forth a new Presidential vision for limiting government secrecy. In it, I stated that President Obama must declare a vision to reduce the amount of information classified by our government by 90% from current levels. If the Post's representation that the portion of the McChrystal report claimed by the Pentagon to be truly classified amounted to only 2% of the original, than perhaps the President should up his vision to reduce classification by 98%.
Ironically, according to McChrystal's assessments, over-classification is directly impacting the success of the war strategy itself, specifically with respect to Strategic Communications. Page D-6 of the report states:
Declassification Authority for ISR/WSV (Intelligence, Surveillance, Reconnaissance / Weapons' System Video)
There has been consistent recognition of problems in using visual imagery, particularly ISR and weapons' system video, and other operational information for StratCom (Strategic Communications) purposes. Every effort must be made to identify, declassify, and exploit such material in a timely manner.
It is reassuring that there has been a "consistent recognition of the problem." It is disappointing that the problem has not been solved. This is but one more example of how classification actually harms national security. It is also one more reason why the President needs to mandate a 90% reduction in classification. The fact that a senior combatant commander can not get declassified the information necessary to discharge his wartime responsibilities is the best example that the classification system cannot reform itself. It requires firm leadership from the President on down.
Update:
With regard to General McChrystal's difficulty in getting weapons' system video declassified, at least it demonstrates that Reuters is not the only one being stiffed armed by the Pentagon in its attempts to get such video declassified as discussed in this earlier post.
Thursday, September 17, 2009
Back to the Future
The other day, the Department of Defense (DoD) proudly heralded new information-sharing access to help select state and local fusion centers combat terrorism. In its press release, DoD stated:
Under this initiative, select (emphasis added) fusion center personnel with a federal security clearance will be able to access specific (emphasis added) terrorism-related information resident on the DoD Secret Internet Protocol Router Network (SIPRNet)—a secure network used to send classified data. This classified data will be accessed via DHS’ Homeland Security Data Network (HSDN). DHS will be responsible for ensuring that proper security procedures are followed.
…
State and major urban area fusion centers provide critical links for information sharing between and across all levels of government, and help fulfill key recommendations of the 9/11 Commission.
Unfortunately, eight years later and DoD has gotten it backward. The 9-11 Commission did not specifically identify the lack of access by State and local officials to classified information as the problem. Rather, it stated that first, the persistent challenge of over-classification must be addressed. Second, the archaic notion of “need-to-know” must be fixed. Finally, a better balance must be restored between security and shared knowledge. It has been eight years since the attacks of 9-11 and yet none of these long-standing deficiencies have been tackled; and this DoD initiative does not even begin to address any of the above problems identified by the 9-11 Commission.
If over-classification was seriously addressed, DoD would discover that it did not need to give State and local activities access to information resident on the military’s classified command and control system.
Second, if over-classification was seriously addressed, DoD would not restrict its sharing of knowledge with “select” state and local activities. Furthermore, it would find that it did not have to restrict access by State and local activities to "specific" terrorism-related information. The DoD initiative is actually the antithesis of the solution identified by the 9-11 Commission and is emblematic of how agencies continue to needlessly hang on to the cold war-era principle of need-to-know.
Finally, State and local activities do not need access to classified information which they, in turn, cannot share with either uncleared State and local officials or the public. Rather, they and the rest of the Federal government must share knowledge, i.e. actionable information, with state and local officials. If the serious challenge of over-classification was addressed in a meaningful manner, State and local activities would actually be provided access to not only to more information, but also information with which they can actually do something – such as share with officials and the public, as appropriate.
Eight years later and this DoD “initiative” is actually more of the same. And eight years later, the current administration does not plan to address over-classification in a meaningful way anytime soon.
Where is the outrage?
Tuesday, September 15, 2009
Classified "Stuff"
Updated Below:
"Stuff" happens, as the saying goes, especially in war. When a nation sends the children of some of its citizens into combat and expects them to use lethal violence against fellow human beings, oftentimes a split-second decision to employ such violence will prove wrong. It is a totally inevitable consequence of a nation's decision to unleash the brutality of war.
The young soldiers who, through circumstances beyond their control, find themselves in a position where they have made a split-second decision which later proves wrong are often left in solitude as they struggle to reconcile reality with the intent of their actions. As with so many tragedies of war, the rest of our nation's citizenry continue on in ignorance , either self-imposed or forced upon them by their government, of the actions done in their name.
Such is the case as reported in today's Washington Post which provided new details surrounding the killing of two journalists in Iraq. According to the article:
Taking each in order, it should be safe to say that the U.S. military does not have any "plans" to kill journalists or other innocent individuals, thus ruling out military plans as the basis for classification. Secondly, the Apache helicopter is a 35-year-old weapon system, and thus cannot in the remotest of situation be considered state-of-the-art. Besides, even a cursory Internet search reveals numerous examples of Apache gun camera video being posted to the web. Finally, this incident involves a military operation from over two years ago. It is difficult to justify that such an incident could be legitimately considered to be classified so long after the event.
The same governing Executive order clearly states that: " In no case shall information be classified in order to:
It is time for the Pentagon to do the right thing in accordance with the governing direction from the President and release the gun camera video in order to allow all our nation's citizens to, as Reuters chief counsel Thomas Kim said, "understand the basis on which the military concluded that the shooting was justified." There is no legitimate national security basis which the government can use to impose continued ignorance on the part of the American people, and the journalists' families, as to what exactly happened to these two individuals.
Update:
The increasing tendency on the part of the government to control access to images as opposed to knowledge of facts such as in the instance above is, in some regards, a more nefarious and cynical form of official secrecy. Whether it is images of official ceremonies for fallen warriors to include flag-draped coffins, pictures of the grievously war-wounded, videos of "enhanced interrogation sessions," photos of detainee abuse, and the like, the government is increasingly attempting to control access to images. By doing so, the government in effect takes the position that while there may be no basis to deny knowledge of the facts of a particular situation, it will nonetheless attempt to control or even preclude Americans' understanding of the facts. Thus is the power of images and thus is the abuse of official power when the government attempts to deny the people access to images of otherwise unclassified events.
"Stuff" happens, as the saying goes, especially in war. When a nation sends the children of some of its citizens into combat and expects them to use lethal violence against fellow human beings, oftentimes a split-second decision to employ such violence will prove wrong. It is a totally inevitable consequence of a nation's decision to unleash the brutality of war.
The young soldiers who, through circumstances beyond their control, find themselves in a position where they have made a split-second decision which later proves wrong are often left in solitude as they struggle to reconcile reality with the intent of their actions. As with so many tragedies of war, the rest of our nation's citizenry continue on in ignorance , either self-imposed or forced upon them by their government, of the actions done in their name.
Such is the case as reported in today's Washington Post which provided new details surrounding the killing of two journalists in Iraq. According to the article:
A new book by a Washington Post reporter provides a graphic, second-by-second description of the U.S. military's 2007 killing of two Reuters journalists in Baghdad, an incident that the news organization says it cannot investigate fully because the Pentagon has withheld key records of the event.
The Reuters photographer and driver were carrying cameras and walking with a group of Iraqi men, some of whom appeared to be armed, when a U.S. helicopter crew mistook them for insurgents...
Reuters has been pressing the U.S. military for more than two years to turn over all materials containing information about the shootings on July 12, 2007, of its staff photographer Namir Noor-Eldeen, 22, and driver Saeed Chmagh, 40, in the helicopter strike in a contested neighborhood of East Baghdad.
...But the U.S. military has withheld key information on the 2007 shootings on the grounds that it is classified, and has not released to Reuters a video taken from the gunship that captures the complete sequence of radio communications and imagery that unfolded on the streets below.
...Soon after the shootings, Reuters submitted a request under the Freedom of Information Act for all documents and materials about the incident, Kim said. In April, the U.S. Central Command, which oversees the U.S. military in Iraq, said it had identified eight documents but was withholding two because they were classified and released six others in redacted form, with classified portions blacked out.
Reuters appealed in June, saying the information the military released was incomplete, challenging the decision to classify it and asking for an expedited decision. In July, the Pentagon rejected the request to expedite the appeal, Kim said. He said one of the documents released contains grainy photographs that appear to be captured from a helicopter video, which Reuters is seeking to obtain.
"It's difficult to understand whether the investigation is coming to sound conclusions without actually seeing the evidence," he said. "It is hard to make heads or tails out of the screen grabs from the video, so we would like to see the video . . . the actual unedited version of what happened on the scene."
Frank Smyth, the journalist security coordinator for the CPJ, said the U.S. military has not made public several other investigations involving the deaths of journalists killed by U.S. forces, and said that more transparency is important both for accountability and for preventing such incidents in the future.
Based upon the Post's reporting, it appears that the Pentagon is withholding Apache gunship video on the grounds that it is classified. It is difficult to imagine how such video can be appropriately classified. Per the governing Executive order for the classification of national security information, the only basis for such classification would be that the information concerned military plans, weapons systems, or operations.Taking each in order, it should be safe to say that the U.S. military does not have any "plans" to kill journalists or other innocent individuals, thus ruling out military plans as the basis for classification. Secondly, the Apache helicopter is a 35-year-old weapon system, and thus cannot in the remotest of situation be considered state-of-the-art. Besides, even a cursory Internet search reveals numerous examples of Apache gun camera video being posted to the web. Finally, this incident involves a military operation from over two years ago. It is difficult to justify that such an incident could be legitimately considered to be classified so long after the event.
The same governing Executive order clearly states that: " In no case shall information be classified in order to:
(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;"When classifying information, it is usually the "fact of" that justifies official secrecy. This instance involving gun camera video appears to be yet another situation where the government is not classifying the "fact of" but rather the images or other records that substantiate what is otherwise an unclassified fact. This is the ultimate in form over substance.
It is time for the Pentagon to do the right thing in accordance with the governing direction from the President and release the gun camera video in order to allow all our nation's citizens to, as Reuters chief counsel Thomas Kim said, "understand the basis on which the military concluded that the shooting was justified." There is no legitimate national security basis which the government can use to impose continued ignorance on the part of the American people, and the journalists' families, as to what exactly happened to these two individuals.
Update:
The increasing tendency on the part of the government to control access to images as opposed to knowledge of facts such as in the instance above is, in some regards, a more nefarious and cynical form of official secrecy. Whether it is images of official ceremonies for fallen warriors to include flag-draped coffins, pictures of the grievously war-wounded, videos of "enhanced interrogation sessions," photos of detainee abuse, and the like, the government is increasingly attempting to control access to images. By doing so, the government in effect takes the position that while there may be no basis to deny knowledge of the facts of a particular situation, it will nonetheless attempt to control or even preclude Americans' understanding of the facts. Thus is the power of images and thus is the abuse of official power when the government attempts to deny the people access to images of otherwise unclassified events.
Tuesday, September 8, 2009
Transparency, Collaborative and Participatory Defined
The below is a follow-up this earlier post.
President Obama, January 20, 2009:
My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.
Mirriam-Webster dictionary definition of transparent, participatory, and collaborative:
Transparent -- characterized by visibility or accessibility of information...
Participatory -- providing the opportunity for individual participation (i.e. to take part) <participatory democracy>
Collaborative -- to work jointly with others or together especially in an intellectual endeavor
Obama administrative operative definition of transparent, participatory, and collaborative based upon a September 2, 2009 reply from General Jones:
Thank you for your letter of August 1... However, we also believe it is essential to preserve the confidentiality (emphasis added) of the President's deliberative process regarding these complex issues that stem from the President's constitutional authority to protect the national security.
A number of observations based upon General Jones' reply and my almost 35 years of experience within the national security establishment.
1) Beware of individuals who talk of "authority" vice "responsibility." We have just lived through 8 years of an administration that saw authority as an end in and of itself vice a means to address the public good. Looks like we are in for more of the same when it comes to national security issues that invariably translate into the sacrifice of American blood and treasure.
2) Confidentiality apparently trumps transparent, participatory, and collaborative.
3) Whenever we wanted to blow off a member of Congress or the like, the short hand phrase was: "send them a letter thanking them for their interest in national security."
4) I believe my earlier question was answered -- apparently this administration was never genuinely interested in allowing the public to enter the public policy arena with the ability to make a substantive impact. Instead, they have simply been conducting a sideshow devoid of any real possibility to influence public policy of grave importance to our nation's well-being.
5) Notwithstanding the President's commitment to making his administration the most open and transparent in history, he apparently was only referring to the history of this millennium. As pointed out in the original letter to General Jones, "in 1993, public disclosure of a near-final draft of the executive order on classified national security information elicited substantial public commentary and contributed to significant revisions of Executive Order 12958 prior to its formal promulgation by President Clinton." Thus, while Obama may transcend Bush on a few issues dealing with official secrecy, he is still trailing Clinton.
6) This administration has apparently given up on any "fundamental transformation of the classification system" -- at least during its first (and perhaps only) administration. By the time any incremental revisions set forth in the proposed revisions to the current classification framework are implemented, this administration will be more than half over. Two years is not enough time to enact a fundamental transformation in a system that pre-dates World War II.
President Obama, January 20, 2009:
My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.
Mirriam-Webster dictionary definition of transparent, participatory, and collaborative:
Transparent -- characterized by visibility or accessibility of information...
Participatory -- providing the opportunity for individual participation (i.e. to take part) <participatory democracy>
Collaborative -- to work jointly with others or together especially in an intellectual endeavor
Obama administrative operative definition of transparent, participatory, and collaborative based upon a September 2, 2009 reply from General Jones:
Thank you for your letter of August 1... However, we also believe it is essential to preserve the confidentiality (emphasis added) of the President's deliberative process regarding these complex issues that stem from the President's constitutional authority to protect the national security.
A number of observations based upon General Jones' reply and my almost 35 years of experience within the national security establishment.
1) Beware of individuals who talk of "authority" vice "responsibility." We have just lived through 8 years of an administration that saw authority as an end in and of itself vice a means to address the public good. Looks like we are in for more of the same when it comes to national security issues that invariably translate into the sacrifice of American blood and treasure.
2) Confidentiality apparently trumps transparent, participatory, and collaborative.
3) Whenever we wanted to blow off a member of Congress or the like, the short hand phrase was: "send them a letter thanking them for their interest in national security."
4) I believe my earlier question was answered -- apparently this administration was never genuinely interested in allowing the public to enter the public policy arena with the ability to make a substantive impact. Instead, they have simply been conducting a sideshow devoid of any real possibility to influence public policy of grave importance to our nation's well-being.
5) Notwithstanding the President's commitment to making his administration the most open and transparent in history, he apparently was only referring to the history of this millennium. As pointed out in the original letter to General Jones, "in 1993, public disclosure of a near-final draft of the executive order on classified national security information elicited substantial public commentary and contributed to significant revisions of Executive Order 12958 prior to its formal promulgation by President Clinton." Thus, while Obama may transcend Bush on a few issues dealing with official secrecy, he is still trailing Clinton.
6) This administration has apparently given up on any "fundamental transformation of the classification system" -- at least during its first (and perhaps only) administration. By the time any incremental revisions set forth in the proposed revisions to the current classification framework are implemented, this administration will be more than half over. Two years is not enough time to enact a fundamental transformation in a system that pre-dates World War II.
At Least We Don't Have a Headache Anymore
I believe it was George Carlin who told a joke in reaction to the trite phrase, "cheer up, things could be worse." Carlin would ask rhetorically -- "what about the guy who has the absolute worst situation in the world? There is no one worse off than he is. What condescending saying do you use with that poor guy?" Carlin's answer: "Cheer up, things could be worse, you could have a headache."
It is in this vein that the AP chose as a headline today: Report: Obama administration improves openness. The headline gives justice to neither the article that follows nor the report upon which it is based.
The report is the Secrecy Report Card 09 issued by OpenTheGovernment.org. In addition to serving as a capstone report on official secrecy in the last year of the Bush-Cheney administration, it also provides "a quick look at the openness and secrecy trends in the new Administration." Contrary to the AP's misleading headline, with respect to the Obama administration the report states that "(t)he record to date is mixed." That's a nice way of saying at least we don't have a headache anymore.
Open government advocates and citizens everywhere are entirely justified in expressing dismay with the Obama administration's record to date. It is not a case where such advocates and citizens projected their own vision on the Obama presidency. Rather, it was Obama himself who set the metrics by which the actions of his administration must be measured. He pledged an administration:
committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government (emphasis added).
It is thus essential to avoid falling into the trap of judging the current administration by simply comparing it with the prior. Yet, that is what the NY Times breathlessly does in an editorial yesterday where it effused:
Transparency doesn’t come easy in Washington, where deal makers and favor seekers prefer to work from the shadows. But the Obama administration is taking a major step into the sunlight with the presidential order to post online the thousands of White House visitors who come and go each month.
Gruel to starving children goes the saying. I previously wrote about this topic here, and while the White House policy on visitor records is a positive step, it is by no means a "major step" to establishing the system of transparency, public participation, and collaboration the President promised.
In an article recently written by Clint Hendler of the Columbia Journalism Review, Steve Aftergood says it best when he states:
there’s a sense that this is the last chance that we have for a decade—maybe for a generation—to get the classification system right.
Our citizens' expectation must be better than simply rolling back some of the most egregious abuses of the prior administration. Incremental change is "business as usual." Unless real and radical change is implemented now, future generations are assured to repeat the tragedies of the current decade, to include the needless sacrifice of American blood and treasure. We owe our children and grandchildren, and their children, much more than that.
It is in this vein that the AP chose as a headline today: Report: Obama administration improves openness. The headline gives justice to neither the article that follows nor the report upon which it is based.
The report is the Secrecy Report Card 09 issued by OpenTheGovernment.org. In addition to serving as a capstone report on official secrecy in the last year of the Bush-Cheney administration, it also provides "a quick look at the openness and secrecy trends in the new Administration." Contrary to the AP's misleading headline, with respect to the Obama administration the report states that "(t)he record to date is mixed." That's a nice way of saying at least we don't have a headache anymore.
Open government advocates and citizens everywhere are entirely justified in expressing dismay with the Obama administration's record to date. It is not a case where such advocates and citizens projected their own vision on the Obama presidency. Rather, it was Obama himself who set the metrics by which the actions of his administration must be measured. He pledged an administration:
committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government (emphasis added).
It is thus essential to avoid falling into the trap of judging the current administration by simply comparing it with the prior. Yet, that is what the NY Times breathlessly does in an editorial yesterday where it effused:
Transparency doesn’t come easy in Washington, where deal makers and favor seekers prefer to work from the shadows. But the Obama administration is taking a major step into the sunlight with the presidential order to post online the thousands of White House visitors who come and go each month.
Gruel to starving children goes the saying. I previously wrote about this topic here, and while the White House policy on visitor records is a positive step, it is by no means a "major step" to establishing the system of transparency, public participation, and collaboration the President promised.
In an article recently written by Clint Hendler of the Columbia Journalism Review, Steve Aftergood says it best when he states:
there’s a sense that this is the last chance that we have for a decade—maybe for a generation—to get the classification system right.
Our citizens' expectation must be better than simply rolling back some of the most egregious abuses of the prior administration. Incremental change is "business as usual." Unless real and radical change is implemented now, future generations are assured to repeat the tragedies of the current decade, to include the needless sacrifice of American blood and treasure. We owe our children and grandchildren, and their children, much more than that.
Monday, September 7, 2009
Two Terrorists for Every Marine
According to an article in yesterday's Washington Post, the government's consolidated "watch list includes about 1.1 million names and aliases corresponding to 400,000 individuals.... A person is included in the list if he or she is 'known or appropriately suspected to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism.'" The mere size of this list means that the U.S. Government believes that there are more terrorists than their are service members in any of the branches of armed services except the U.S. Army. For example, according to our government, there are twice as many terrorists as there are members of the U.S. Marine Corps.
Common sense would dictate that sooner or later, a list of such magnitude would become almost worthless because of all the false positives it inevitably contains. Names are continually added -- few are ever removed.
One way, in fact the best way, to ensure an accurate and meaningful list would be to make the list public. There is no better way to scrub such a list of the inevitable false positives.
However, continuing its track record of shameful excessive official secrecy, the article reports that:
The Obama administration wants to maintain the secrecy of terrorist watch-list information it routinely shares with federal, state and local agencies, a move that rights groups say would make it difficult for people who have been improperly included on such lists to challenge the government. Intelligence officials in the administration are pressing for legislation that would exempt "terrorist identity information" from disclosure under the Freedom of Information Act (FOIA).
And what is the rationale for the government foregoing the best means possible to ensure as accurate a list as possible? According to the Post:
BTW -- only the really dumb "terrorists" operate and travel under their true identity.
Just one more example of how excessive secrecy actually harms national security.
Common sense would dictate that sooner or later, a list of such magnitude would become almost worthless because of all the false positives it inevitably contains. Names are continually added -- few are ever removed.
One way, in fact the best way, to ensure an accurate and meaningful list would be to make the list public. There is no better way to scrub such a list of the inevitable false positives.
However, continuing its track record of shameful excessive official secrecy, the article reports that:
The Obama administration wants to maintain the secrecy of terrorist watch-list information it routinely shares with federal, state and local agencies, a move that rights groups say would make it difficult for people who have been improperly included on such lists to challenge the government. Intelligence officials in the administration are pressing for legislation that would exempt "terrorist identity information" from disclosure under the Freedom of Information Act (FOIA).
And what is the rationale for the government foregoing the best means possible to ensure as accurate a list as possible? According to the Post:
One intelligence official said the information's disclosure creates a host of difficulties. "Here's the problem," the official said, discussing the matter on the condition of anonymity because he was not authorized to speak on the record. "If you've got somebody, including a suspected terrorist, who can FOIA that information, you're making intelligence-gathering methods vulnerable. You're possibly making intelligence agents and law enforcement personnel vulnerable. Suspects could alter their behavior and circumvent the surveillance."
Sounds well and good, except for the simple fact that if a true "terrorist" (whatever or whoever that is) wanted to ascertain if his or her name was on the list, rather than submitting a FOIA for the information, all he or she would need to do is to have someone try to buy an airline ticket in his or her name. Furthermore, by doing so, the "terrorist" would not have to wait two years or more for the government to get around to replying to the FOIA. Instead, he or she would have an instantaneous answer by a much simpler means.BTW -- only the really dumb "terrorists" operate and travel under their true identity.
Just one more example of how excessive secrecy actually harms national security.
Saturday, September 5, 2009
Opening Up the People’s House -- Sometimes Yes, Sometimes No, and Sometime I May Revert Back to Never
Yesterday, the White House announced a new policy to voluntarily disclose White House visitor access records. I had previously written about this topic here and here.
The White House is to be commended for taking this step back from embracing just one of the many extreme secrecy policies of the prior administration. However, as announced, this policy still leaves much to be desired.
First, it is "voluntary". That means that this or any future administration can revert to the previous cloak of official secrecy on the slightest whim. At the very least, the policy should be institutionalized through Executive Order or some other more permanent policy.
Second, the devil is always in the details and in this case, the details are more than a little vague. On the White House blog announcing this new voluntary policy, the exceptions were described as follows:
Aside from a small group of appointments that cannot be disclosed because of national security imperatives or their necessarily confidential nature (emphasis added) (such as a visit by a possible Supreme Court nominee), the record of every visitor who comes to the White House for an appointment, a tour, or to conduct business will be released.
The vagueness arises when the blog post is compared to the full policy which states, in part:
The White House will not release ... records whose release would threaten national security interests.
The White House will not release access records related to a small group of particularly sensitive meetings (e.g., visits of potential Supreme Court nominees).
Ironically, the synopsis appears to be more detailed than the detailed policy. "National security imperatives" seems more stringent than "national security interests". In addition, the reference to "national security" is troubling, especially since the White House visitors records system is an unclassified computer system. If the national security imperative or interest, whatever the case maybe, is not classified in that the visit can be entered into an unclassified system, what would then be the basis to withhold the information? Furthermore, "sensitive" is a vague term through which you can drive a whole bus load of Wall Street bankers seeking bailouts and the like.
This is definitely a move in the right direction, but unfortunately it still comes up short in satisfying the President's campaign rhetoric. I think Mike German of the ACLU said it best:
While the new policy is commendable, some vaguely worded exceptions to it do raise concerns about the potential for abuse in classifying matters under the umbrella of national security. We encourage President Obama to define these exceptions narrowly and to keep secret visits in the White House to a minimum. The ACLU will continue to hold the administration to its commitment to be, in its own words, "the most open and transparent administration in history."
The White House is to be commended for taking this step back from embracing just one of the many extreme secrecy policies of the prior administration. However, as announced, this policy still leaves much to be desired.
First, it is "voluntary". That means that this or any future administration can revert to the previous cloak of official secrecy on the slightest whim. At the very least, the policy should be institutionalized through Executive Order or some other more permanent policy.
Second, the devil is always in the details and in this case, the details are more than a little vague. On the White House blog announcing this new voluntary policy, the exceptions were described as follows:
Aside from a small group of appointments that cannot be disclosed because of national security imperatives or their necessarily confidential nature (emphasis added) (such as a visit by a possible Supreme Court nominee), the record of every visitor who comes to the White House for an appointment, a tour, or to conduct business will be released.
The vagueness arises when the blog post is compared to the full policy which states, in part:
The White House will not release ... records whose release would threaten national security interests.
The White House will not release access records related to a small group of particularly sensitive meetings (e.g., visits of potential Supreme Court nominees).
Ironically, the synopsis appears to be more detailed than the detailed policy. "National security imperatives" seems more stringent than "national security interests". In addition, the reference to "national security" is troubling, especially since the White House visitors records system is an unclassified computer system. If the national security imperative or interest, whatever the case maybe, is not classified in that the visit can be entered into an unclassified system, what would then be the basis to withhold the information? Furthermore, "sensitive" is a vague term through which you can drive a whole bus load of Wall Street bankers seeking bailouts and the like.
This is definitely a move in the right direction, but unfortunately it still comes up short in satisfying the President's campaign rhetoric. I think Mike German of the ACLU said it best:
While the new policy is commendable, some vaguely worded exceptions to it do raise concerns about the potential for abuse in classifying matters under the umbrella of national security. We encourage President Obama to define these exceptions narrowly and to keep secret visits in the White House to a minimum. The ACLU will continue to hold the administration to its commitment to be, in its own words, "the most open and transparent administration in history."
Thursday, September 3, 2009
A New Presidential Vision for Limiting Government Secrecy
If the timetable he set last spring is met, President Obama will soon receive recommendations for revising the current executive order on when and how to classify information as a national security secret. In all likelihood, he will receive what every President since FDR has in response to similar requests – nothing more than incremental adjustments to existing practices. Obama asked for as much when he identified “overclassification” as the “problem.” The true challenge is that national security classification itself is an antiquated cold war era concept that, in the past decade alone, has inflicted more harm on our nation than all espionage cases combined.
What I learned as the top classification overseer in the executive branch is that 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 illness they are attempting to cure. In government, as we have all seen, secrecy ultimately makes for flawed decisions. It undermines our constitutional form of government, weakens the rule of law, and facilitates actions inconsistent with our nation’s core values and beliefs. It can contribute to the squandering of American blood and treasure and aid our adversaries in the recruitment of future extremists.
In order to stem this continuing damage, when presented with recommendations for incremental change, President Obama must respond by declaring his vision to reduce the amount of information classified by our government by 90% from current levels and unleash the ingenuity of the agencies to achieve this by the end of his current administration.
Imagine a world where the contents of the president’s August 6, 2001 intelligence brief, Bin Laden Determined to Strike in the US, had been subject to public dissemination at the time it was produced, rather than after the fact and only at insistence of the “9/11 Commission.” Similarly, imagine if the National Intelligence Estimate on Iraq’s Continuing Programs of Weapons of Mass Destruction produced for Congress in the lead up to the Iraq War had not been classified. According to the Senate report on pre-war intelligence on Iraq, Congress would have learned of alternative views on whether Iraq would have a nuclear weapon this decade and that the intelligence community’s own nuclear experts did not agree with the estimate’s conclusion regarding the issue of 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. Instead, most members of Congress relied upon a contemporaneous unclassified white paper that has been judged as being misleading to both the Congress and the American people. Thus was the choice made to unleash the brutality of war, one that continues to this day.
Likewise, I believe it is fair to ask whether our nation would have descended into the world of torture unless the authors of the flawed memos used to justify such policy could be assured of the memos’ secrecy and the public’s continuing ignorance of their content. Similarly, it seems impossible that our government would have engaged in unlawful intelligence gathering through warrantless surveillance, as determined by John Ashcroft and other justice officials, unless the equally flawed legal analysis which served as its underpinning had been kept secret.
Finally, 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 today, 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 has proven either unsubstantiated or outright false in that, as noted by The Washington Independent's Daphne Eviatar, in 28 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.
To paraphrase another President who harnessed the prowess of this nation to send a man to the moon and back, in declaring his vision to reduce classification by 90%, Obama can state that we choose this as our goal, not because it is easy, but because it is hard, because the 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 as a result we will leave a better America for future generations.
What I learned as the top classification overseer in the executive branch is that 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 illness they are attempting to cure. In government, as we have all seen, secrecy ultimately makes for flawed decisions. It undermines our constitutional form of government, weakens the rule of law, and facilitates actions inconsistent with our nation’s core values and beliefs. It can contribute to the squandering of American blood and treasure and aid our adversaries in the recruitment of future extremists.
In order to stem this continuing damage, when presented with recommendations for incremental change, President Obama must respond by declaring his vision to reduce the amount of information classified by our government by 90% from current levels and unleash the ingenuity of the agencies to achieve this by the end of his current administration.
Imagine a world where the contents of the president’s August 6, 2001 intelligence brief, Bin Laden Determined to Strike in the US, had been subject to public dissemination at the time it was produced, rather than after the fact and only at insistence of the “9/11 Commission.” Similarly, imagine if the National Intelligence Estimate on Iraq’s Continuing Programs of Weapons of Mass Destruction produced for Congress in the lead up to the Iraq War had not been classified. According to the Senate report on pre-war intelligence on Iraq, Congress would have learned of alternative views on whether Iraq would have a nuclear weapon this decade and that the intelligence community’s own nuclear experts did not agree with the estimate’s conclusion regarding the issue of 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. Instead, most members of Congress relied upon a contemporaneous unclassified white paper that has been judged as being misleading to both the Congress and the American people. Thus was the choice made to unleash the brutality of war, one that continues to this day.
Likewise, I believe it is fair to ask whether our nation would have descended into the world of torture unless the authors of the flawed memos used to justify such policy could be assured of the memos’ secrecy and the public’s continuing ignorance of their content. Similarly, it seems impossible that our government would have engaged in unlawful intelligence gathering through warrantless surveillance, as determined by John Ashcroft and other justice officials, unless the equally flawed legal analysis which served as its underpinning had been kept secret.
Finally, 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 today, 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 has proven either unsubstantiated or outright false in that, as noted by The Washington Independent's Daphne Eviatar, in 28 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.
To paraphrase another President who harnessed the prowess of this nation to send a man to the moon and back, in declaring his vision to reduce classification by 90%, Obama can state that we choose this as our goal, not because it is easy, but because it is hard, because the 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 as a result we will leave a better America for future generations.
Tuesday, September 1, 2009
Ignorant Consent
Excessive official secrecy fosters ignorance upon our nation's citizens. That's not to say that some citizens do not prefer to be ignorant.
The Washington Post has lately become an extreme apologist for our nation's torture program. Today, Richard Cohen had a typical WaPo hand-wringing piece in which he attempts to have it both ways and lament how elusive the truth is. In an op-ed piece entitled Torture's Unanswerable Questions, he writes:
Oh, Richard -- your thesis is so full of holes and so incoherent, of course it's unanswerable.
First, you say Ishmael "knows' he won't be tortured. How does he know that? Because our President says "We don't torture?" Seems we've had a President who said that before. Is it because practices such as waterboarding are against our domestic law and international treaty obligations? That's been true for generations. You say he knows the restrictions and limits. How so? At the highest level our current national leaders have stated that we will not hold accountable the most senior government leaders who crafted and implemented our torture programs. Absent accountability, how can Ishmael -- how can any of us -- know that our government will not embark down that dark road again in ten years, in ten months, in ten days?
All I can say is that Ishmael is a bigger fool than you if, absent accountability at the most senior levels, he believes that there are any constraints on the violence our government officials can and will inflict upon other human beings in your and my name, as well as that of our fellow citizens.
You betray your callousness when you write of your "desire for absolute security..." As a nation, since we so readily send our children (and our fellow citizens' children) off to fight and die in wars, we tacitly recognize that there are things worse than suffering and death -- that there are ideals and values that are truly worthy of the sacrifice of human life. One of those fundamental values is the recognition that we are a nation of laws -- that collectively we recognize that there is right and wrong, that we institutionalize this recognition into law, and, at least some of us, are willing to sacrifice to defend the "rule of law."
So, Richard, the answer to your "unanswerable" question is very simple. Torture has been, is, and at least for the time being, will remain against our laws. I am sorry that you consider the "rule of law" to be an "ideological" concept. To me, and many others, it is one of the most fundamental values upon which this nation is based.
Therefore, Richard, if you truly want your absolute security, if you truly want Ishmael to have to continue to wonder whether he will be tortured, simply change the law to allow Ishmael -- and Mohammad, and Julio, and Liam, and Bob and Mary, and even you and me and our children to be subjected to torture anytime your government believes it is appropriate.
Change the law, Richard. Make all the torture we have inflicted, and all the torture we may want to inflict in the future out of a desire for absolute security -- make it all legal. Even better, make it legal retroactively.
That's your answer, Richard. Change the law. However, I believe even you would not have the stomach to do that because that, Richard, is what "ugly" truly is.
The Washington Post has lately become an extreme apologist for our nation's torture program. Today, Richard Cohen had a typical WaPo hand-wringing piece in which he attempts to have it both ways and lament how elusive the truth is. In an op-ed piece entitled Torture's Unanswerable Questions, he writes:
Call him Ishmael.
Call him a terrorist or a suicide bomber or anything else you want, but understand that he is willing -- no, anxious -- to give his life for his cause. Call him also a captive, and know that he works with others as part of a team, like the Sept. 11 hijackers, all of whom died, willingly. Ishmael is someone I invented, but he is not a far-fetched creation. You and I know he exists, has existed and will exist again. He is the enemy.
Now he is in American custody. What will happen? How do we get him to reveal his group's plans and the names of his colleagues? It will be hard. It will, in fact, be harder than it used to be. He can no longer be waterboarded.
...
He knows the new restrictions. He knows the new limits.
...
This business of what constitutes torture is a complicated matter.
...
No one can possibly believe that America is now safer because of the new restrictions on enhanced interrogation and the subsequent appointment of a special prosecutor.
...
I am, as you can see, full of questions. I have, as you can see, few answers.
...
I am torn between my desire for absolute security and my abhorrence of torture. The one thing I know is that ideology does not provide an answer.
...
The questions of what constitutes torture and what to do with those who, maybe innocently, applied what we now define as torture have to be removed from the political sphere. They cannot be the subject of an ideological tug of war, both sides taking extreme and illogical positions -- torture never works, torture always works, torture is always immoral, torture is moral if it saves lives. Torture always is ugly. So, though, is the hole in the ground where the World Trade Center once stood.
In response to Cohen's deliberate ignorance, I offer the following:Oh, Richard -- your thesis is so full of holes and so incoherent, of course it's unanswerable.
First, you say Ishmael "knows' he won't be tortured. How does he know that? Because our President says "We don't torture?" Seems we've had a President who said that before. Is it because practices such as waterboarding are against our domestic law and international treaty obligations? That's been true for generations. You say he knows the restrictions and limits. How so? At the highest level our current national leaders have stated that we will not hold accountable the most senior government leaders who crafted and implemented our torture programs. Absent accountability, how can Ishmael -- how can any of us -- know that our government will not embark down that dark road again in ten years, in ten months, in ten days?
All I can say is that Ishmael is a bigger fool than you if, absent accountability at the most senior levels, he believes that there are any constraints on the violence our government officials can and will inflict upon other human beings in your and my name, as well as that of our fellow citizens.
You betray your callousness when you write of your "desire for absolute security..." As a nation, since we so readily send our children (and our fellow citizens' children) off to fight and die in wars, we tacitly recognize that there are things worse than suffering and death -- that there are ideals and values that are truly worthy of the sacrifice of human life. One of those fundamental values is the recognition that we are a nation of laws -- that collectively we recognize that there is right and wrong, that we institutionalize this recognition into law, and, at least some of us, are willing to sacrifice to defend the "rule of law."
So, Richard, the answer to your "unanswerable" question is very simple. Torture has been, is, and at least for the time being, will remain against our laws. I am sorry that you consider the "rule of law" to be an "ideological" concept. To me, and many others, it is one of the most fundamental values upon which this nation is based.
Therefore, Richard, if you truly want your absolute security, if you truly want Ishmael to have to continue to wonder whether he will be tortured, simply change the law to allow Ishmael -- and Mohammad, and Julio, and Liam, and Bob and Mary, and even you and me and our children to be subjected to torture anytime your government believes it is appropriate.
Change the law, Richard. Make all the torture we have inflicted, and all the torture we may want to inflict in the future out of a desire for absolute security -- make it all legal. Even better, make it legal retroactively.
That's your answer, Richard. Change the law. However, I believe even you would not have the stomach to do that because that, Richard, is what "ugly" truly is.
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