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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.

Wednesday, May 03, 2006

Frivolous claims of secrecy

One of the principal "defenses" of the Bush administration to its illegal warrantless eavesdropping on Americans is the claim that they "repeatedly briefed" a few members of Congress about the program (as though illegal behavior somehow becomes proper as long as you share vague details about what you're doing with a handful of people while emphasizing that they will go to jail if they tell anyone, including their own advisors and staff). In order to determine the accuracy of those claims, House Minority Leader Nancy Pelosi has been attempting to find out which Congressional leaders were supposedly briefed, how many times they were briefed and when they were briefed.

After promising to answer Pelosi's inquiry, which was first posed back in December, the administration stonewalled for the next several months and simply failed to furnish this most innocuous information. Now, it has decided that it will refuse to publicize this information, suddenly - and absurdly - insisting that even this information, simply revealing which Congressional representatives received these "repeated" briefings - is highly classified and cannot be disclosed. According to a letter written yesterday by Pelosi to National Security Advisor Stephen Hadley:

On December 22, 2005, I wrote to you requesting the dates and locations of, as well as the names of members of the Senate and House of Representatives who attended briefings on the National Security Agency (NSA) surveillance program discussed by the President in his December 17, 2005 radio address. You responded on December 29 informing me that you had asked the Director of National Intelligence to provide me with the information I had requested.

The NSA Director has advised me that the information I sought has been sent to the House Intelligence Committee for secure storage because it was “classified and compartmented.” It is my understanding that the information provided is confined to a list of names of those who attended the briefings and the dates on which the briefings occurred. This is not national security information by any definition, and I therefore find the decision to classify it to be inconsistent with classification standards and completely without merit.


As Pelosi notes, the claim that the identity of those who were briefed is "classified" is particularly frivolous given that it is the administration itself who publicized the alleged existence of these briefings by continuously claiming that they provided such briefings "dozens" of times.

The administration, of course, has long been using its religious embrace of secrecy as a means of blocking any investigation into the NSA program -- refusing, for instance, to disclose to Congress even the most innocuous facts (.pdf) about the warrantless eavesdropping program, including how many Americans were subject to warrantless surveillance or which administration officials were briefed about the program and when. And now it is invoking claims of secrecy for the most patently non-classified information, such as which members of Congress received all of the briefings which they claim they gave and on what dates those briefings were given.

Over the last couple of days, The Chicago Tribune published two excellent articles on the administration's unprecedented abuses of its secrecy powers. As former Senate Intelligence Committee Chair Bob Graham said in the second article:

The theme of insularity and secrecy is pervasive . . . They are adopting a position that the American people cannot be trusted with information that is critical to their well-being.

That is the world-view of this administration in a nutshell. Americans need not know anything that their Government is doing, because their Government is Good and seeks only to protect them. And those who defend the administration's conduct believe the same - we need no oversight of the President, nor do we need to know what he is doing, because he is Good and only wants what is best for us.

That rationale works as long as most people trust the President. Now that most Americans decisively do not, the trust which justifies this wall of secrecy has vanished, and the administration's ability to conceal its conduct is diminishing as well. Although it's very late in arriving, and is clearly the by-product of the fact that the President is weak on all fronts, the media seems increasingly, and finally, willing to report on at least some of the abuses of power to which we have been subjected for the last five years.

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