Yesterday, I provided a couple of observations regarding a commentary provided by General Michael V. Hayden, a member of the Public Interest Declassification Board (PIDB) and former Director of NSA and CIA. Hayden stated that Obama was wrong to release the Office of Legal Counsel (OLC) memos on torture.
Hayden's comments highlight all that is wrong with respect to how some in our Government use the classification system. It is also a prime example of what is wrong with the new state secrets privilege policy recently announced by the Obama administration and why both the courts and the Congress must apply greater scrutiny and not blind deference to assertions of secrecy by the executive.
In his commentary, Hayden refers to "activities that are universally 'known' but are still not officially confirmed by the U.S. government." For Hayden, included in these universally known secrets, at least up to the time Obama officially released the OLC memos, were the techniques of waterboarding and other “enhanced interrogation techniques," practices prohibited by both U.S. and international law. Hayden then proudly states that based on a declaration he signed, a judge had agreed in 2008 to allow the government to continue to protect -- on the grounds of national security -- the fact that the U.S. had waterboarded (i.e. tortured) detainees. Finally, in response to his declaration, Hayden quotes the judge as noting "... my job is to defer to the extent appropriate -- and that is substantial -- to the decision of the director of the CIA," and that the judge went on to point out that "there has been a reluctance on the part of the courts to interfere with the discretion conferred by the mandate of the statutes on the CIA."
While the court failed to scrutinize Hayden's claims in this instance, I have no reluctance to do so, especially in view of Hayden's use of the concept of "universally known" secrets as justification for continued classification.
When the government wants to withhold information, it’s fair to ask from whom is the information being withheld. When the government uses the classification system to withhold information, ostensibly it means that there is a reasonable basis to believe that the information can be used by our nation's adversaries to harm us. In this case, the previously withheld information relates to interrogation techniques, to include waterboarding, which we have employed on suspected terrorists. The most common claim has been that if extremists determined to commit violence against Americans (e.g. al-Qaeda) knew our interrogation techniques, (to include their limits) they could better train to resist such techniques in the event of capture.
How reasonable is it then to expect official secrecy to prevent al-Qaeda and others from being able to train to resist such techniques? To begin with, as evidenced by Tomás de Torquemada and the Spanish Inquisition, our intelligence services did not invent torture. In fact, as documented in the Senate Armed Services Committee Inquiry Into the Treatment of Detainees in U.S. Custody, the "enhanced interrogation techniques originated with the utilization of instructors from the Joint Personnel Recovery Agency (JPRA) who oversee the Survival, Evasion, Resistance and Evasion (SERE) program, and who believed they had "the ability to exploit personnel based on how our enemies have done this type of thing over the last five decades.” As it turns out, the “enhanced techniques” were copied verbatim from an unclassified 1957 Air Force study of Chinese Communist techniques used during the Korean War to obtain confessions, many of them false, from American prisoners. Thus, the very information that Hayden wanted the courts to withhold in the name of national security has long been readily available to our nation's adversaries.
Likewise, many of the detainees upon whom these techniques were employed were subsequently released. Upon return, they were able to tell all about their experiences, to include to those with connections to al-Qaeda and others.
Similarly, there is the report from the International Committee of the Red Cross that had been leaked and which detailed our government's torture of detainees. Hayden dismisses the leak in "that there was a difference between speculation (however, informed or ill-informed it might be) and formal confirmation by the U.S. government."
Such a distinction may be important to Hayden, but it is meaningless to the rest of the world. The absence of an official U.S. confirmation of the universally known secret that the U.S. engaged in torture did nothing to dissuade friend and foe alike from believing what they believed. Hayden's a smart guy, and he cannot possibly believe that in the absence of official U.S. confirmation that al-Qaeda and others would say: "Hey guys, we don't have to train to resist torture anymore because Bush says that they do not torture."
So, if our government had to realize that there was no way they could keep the information regarding interrogation techniques away from our adversaries, and, due to the leak of the ICRC report there was no way to keep it from the rest of the world, just who was being most directly impacted by the withholding of the information?
Based upon the below 2005 press release from the Department of Defense, I believe that it can be readily demonstrated that the real intent was to withhold the information from the American people. In fact, at the same time our government was torturing detainees, it knowingly released the following piece of "disinformation" to the American people:
If you're a Muslim extremist captured while fighting your holy war against "infidels," avoid revealing information at all costs, don't give your real name and claim that you were mistreated or tortured during your detention.
This instruction comes straight from the pages of an official al Qaeda training manual, and officials at the detention facility at Naval Station Guantanamo Bay, Cuba, say they see clear evidence that detainees are well-versed in its contents.
By inferring that all claims by detainees of being tortured were false while knowing that at least some, and perhaps all, were actually true, our own government engaged in active deception of the American people.
Finally, and most tragically, the attitude embodied in Hayden's commentary actually has a significant adverse impact upon the security of our nation and continues to result in an extraordinary cost in terms of American blood and treasure every day. Whether we officially acknowledge a universal known or not, the very conduct enabled by official secrecy not only fails to isolate the extremists of the world, but it actually assists in their recruitment efforts. This is due, in large part, to the worldwide recognition that we violate our own values and ideals, especially as they relate to human dignity and the rule of law. Furthermore, when we withhold information, when we are ashamed of the truth and hide it, we allow the enemy to shape the "truth" in the eyes of the rest of the world, which is always worse than our worst acts.
If one has any doubt as to how the actions taken in the name of national security actually harms national security, all one needs to do is read is the first-person account by David Rohde, a NY Times reporter, of his seven months as a captive of the Taliban in Pakistan. In the account published this past Sunday, Rohde writes of his captors:
Some of their comments were factual. They said large numbers of civilians had been killed in Afghanistan, Iraq and the Palestine territories in aerial bombings. Muslim prisoners had been physically abused and sexually humiliated in Iraq. Scores of men had been detained in Cuba and Afghanistan for up to seven years without charges.
To Americans, these episodes were aberrations. To my captors, they were proof that the United States was a hypocritical and duplicitous power that flouted international law.
To paraphrase Hayden, his decision to justify the continued classification of a universally known truth was a political one, not one rooted in national security considerations. If it is to be defended, history should demand that it be defended on those grounds.
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