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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Sunday, April 23, 2006

Eliminating all checks against lawbreaking

Deliberately obscured in the furor over the CIA's firing of Mary McCarthy is that she was fired for disclosing conduct on the part of our government which is plainly illegal, highly disturbing, and further reflective of the lowly and authoritarian levels to which the U.S. has descended under the Bush administration. What the story by Dana Priest revealed is that our government maintains secret prisons beyond the reach of the law, inspections by human rights organizations, and the knowledge of Congress or any other oversight body. Anyone who is kept in them is, by definition, disappeared and almost certainly tortured. How could it be anything but legitimate to reveal that our government is engaged in this behavior?

As Priest's original article reported:


The CIA has been hiding and interrogating some of its most important al Qaeda captives at a Soviet-era compound in Eastern Europe . . . .

The CIA and the White House, citing national security concerns and the value of the program, have dissuaded Congress from demanding that the agency answer questions in open testimony about the conditions under which captives are held. Virtually nothing is known about who is kept in the facilities, what interrogation methods are employed with them, or how decisions are made about whether they should be detained or for how long. . . .

Although the CIA will not acknowledge details of its system, intelligence officials defend the agency's approach, arguing that the successful defense of the country requires that the agency be empowered to hold and interrogate suspected terrorists for as long as necessary and without restrictions imposed by the U.S. legal system or even by the military tribunals established for prisoners held at Guantanamo Bay. . . .

It is illegal for the government to hold prisoners in such isolation in secret prisons in the United States, which is why the CIA placed them overseas, according to several former and current intelligence officials and other U.S. government officials. Legal experts and intelligence officials said that the CIA's internment practices also would be considered illegal under the laws of several host countries, where detainees have rights to have a lawyer or to mount a defense against allegations of wrongdoing.

Host countries have signed the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as has the United States. Yet CIA interrogators in the overseas sites are permitted to use the CIA's approved "Enhanced Interrogation Techniques," some of which are prohibited by the U.N. convention and by U.S. military law. They include tactics such as "waterboarding," in which a prisoner is made to believe he or she is drowning. . . .

Since then, the arrangement has been increasingly debated within the CIA, where considerable concern lingers about the legality, morality and practicality of holding even unrepentant terrorists in such isolation and secrecy, perhaps for the duration of their lives. Mid-level and senior CIA officers began arguing two years ago that the system was unsustainable and diverted the agency from its unique espionage mission.


Who could possibly argue that if the U.S. is going to become a country which disappears people -- based purely on suspected guilt -- into secret gulags and torture chambers, indefinitely, beyond the reach of the law or any oversight, that we should not at least have a democratic debate about whether we really want to become that kind of a country? The Congress passed a law overwhelmingly at the end of 2005 banning all forms of torture -- a law which was enacted only in response to unauthorized leaks which revealed the scope, frequency and magnitude of our torture practices. Just fathom all of the secret, illegal policies which would be ongoing and unknown had leakers not existed.

That is what the Bush administration is so angry about -- that leaks of this sort constitute the last remaining check on their power to act without constraints of any kind, including those imposed by law, and it is why they are waging war on it. This is nothing more than the latest effort to vest in the Bush administration the power to act without legal or moral limits of any kind, in total secrecy, in violation of laws and treaties, and in contravention of the values and mores that have long defined who we are as a nation.

That is why the CIA Director installed by the White House does not have as his top priority combating terrorism or finding Osama bin Laden, but instead, is focused first and foremost on stopping leaks. They are the one thing left that provides any meaningful check on this government.

Always missing from any of the outrage over these great breaches of our national security is any specific explanation as to how national security has been harmed. When the CIA attempted to dissuade the Post from publishing the story, the rationale they invoked was not that the disclosure would harm national security -- how could it? -- but that the disclosure would subject them to political embarrassment and force them to operate within the law:

While the Defense Department has produced volumes of public reports and testimony about its detention practices and rules after the abuse scandals at Iraq's Abu Ghraib prison and at Guantanamo Bay, the CIA has not even acknowledged the existence of its black sites. To do so, say officials familiar with the program, could open the U.S. government to legal challenges, particularly in foreign courts, and increase the risk of political condemnation at home and abroad. . . .

Note as well how vigilant Priest was to keep concealed all information which might actually harm national security:

The Washington Post is not publishing the names of the Eastern European countries involved in the covert program, at the request of senior U.S. officials. They argued that the disclosure might disrupt counterterrorism efforts in those countries and elsewhere and could make them targets of possible terrorist retaliation.

Just as they did with the NSA eavesdropping program -- where the Times, after a year-long delay, disclosed only the existence of the program but not its operational details -- the media goes out of its way to avoid disclosure of any operational details or other information would could result in national security harm. They disclose only the minimum information necessary to inform Americans of the highly controversial and likely illegal behavior on the part of our government. And yet Bush followers still swarm with demands that those responsible for these disclosures be imprisoned.

Holding people in secret, unknown prisons with no legal recourse or monitoring of any kind is what the most evil totalitarian regimes do. That is not something, historically at least, which the United States does. But if it is going to be something we do, then we should at least have a debate about that. But that is exactly what the Bush administration and its followers want to eliminate -- debate, oversight over their actions, limitations of any kind. They want to be able not only to disappear people, torture people, eavesdrop on us illegally, and break every law and treaty they can find -- but they want to be able to do it all in secret, without it being known that they are doing it.

That is why they are spending so more time and energy fortifying the wall of secrecy around what they are doing -- waging war on every last check and restraint on their conduct. They believe that they ought to have the power to operate in total secrecy and without any restraints, and it is not hyperbole to say that leaks of this sort are one of the very last things that stand in their way.

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