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:

• 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.

2. The president should direct the Attorney General to review within 100 days each case in which the previous administration asserted the state secrets privilege. The review should assess whether the previous assertions of the privilege can be withdrawn with respect to disclosure of particular pieces of evidence, as well as whether the case can move forward with unprivileged information that is substituted for the privileged information. Because closed cases cannot be reopened, consideration of withdrawing previous assertions should only apply to cases that are open at the time of the review. The results of this review should be reported both to Congress and to the public.

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?

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)

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."

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.

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?

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:

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.

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.

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.