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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.

Friday, June 16, 2006

Secrecy and security

By Hume's Ghost

"A ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens ... Unending secrecy of actions taken by government officials may also serve as a cover for possible official misconduct and/or incompetence. " - Judge Richard Cardamone, explaining his decision to uphold the unconstitutionality of the Patriot Act's National Security letters provision

"The government doesn't lightly relinquish the spoils of power seized under the pretexts of apocalypse. What the government grasps, the government seeks to keep and hold, and too many of its reformulated purposes fit too neatly with the Bush administration's wish to set itself above the law. Often when watching the offical spokespeople address a television audience, I'm reminded of corporate lawyers talking to a crowd of recently bankrupted shareholders, and usually I'm left with the impression that they would like to put the entire country behind a one-way mirror that allows the government to see the people but prevents the people from seeing it." - Lewis Lapham, Gag Rule: On the Suppression of Dissent and the Stifling of Democracy

Describing James Madison's belief that an absolutely essential condition for the American republic be that "no man is allowed to be a judge in his own cause," Gary Wills writes, in Explaining America,

No king, no legislature, no body at all should be put in a situation where interest has no overseer. The virtuous man will not want to be put in that situation. He welcomes the scrutiny of fair men. His virtue is not private, but public; on display, and asking to be tested.
Officials "derive their just powers from the consent of the governed," but the governed can not give that consent properly unless they are able to know what their governors are doing. In essence, the public is to be the ultimate judge of what actions are in the public interest, and to do this, they must know what those actions are. Our system of representational democracy is predicated on the notion that the public has knowledge of what it's government is doing so that it might make informed decisions at the polls.

Could the presidency of the Bush administration possibly be further removed from that ideal? Having its "virtue" displayed in public, to be judged by "the scrutiny of fair men" is the last thing that the administration wants. Indeed, since the President took office, it has been a matter of policy that this administration ask to be put in a situation where it would be a judge in its own cause, while also asking us to trust that it is privately virtuous.

There are so many examples of the Bush administration seeking to hide its actions behind a veil of secrecy (like former Attorney General John Ashcroft ordering federal agencies to refuse Freedom of Information Act requests as a matter of policy) that I find myself struggling to focus this post, so I will direct the readers attention to John Dean's Worse than Watergate, a polemic which does for the administration's secrecy what's Glenn's book does for the administration's lawbreaking, and will attempt to narrow that focus to a few examples here in order to make my point.

George Bush's first act upon hearing that he had been elected president of the United States was to order that his gubernatorial papers be sent to his father's presidential library. Texas law mandated that the state Library and Archives Comission be consulted, but GW Bush unilaterally decided that the role of the office of Peggy Rudd, the director and librarian of Texas's Library and Archives Commision, was to record his decision and live with it, despite Texas law mandating that the governor's papers be indexed and then made public, with requests for documents being answered within ten days of the request. His father's library was under the direction of the U.S. National Archives and Records which claimed that the papers were federalized so that Texas law no longer applied. A year later, Rudd won a legal victory and had the papers returned to Texas, but Governor Perry, Bush's handpicked succesor, and a new attorney general (also a Bush supporter) received the President's records for (slow) processing and claimed new exemptions under the law in order to withhold them from the public. One of the things that had been revealed in the window of time before the new governor blocked access to the papers was that Governor Bush and Alberto Gonzales had run a rapid rubber stamp program while reviewing death penalty cases. Obviously, knowing this is a dangerous threat to national security. This was a sign of things to come.

President Bush soon continued the trend

On March 23, 2001, Mr. Gonzales, the White House counsel, ordered the National Archives not to release to the public 68,000 pages of records from Ronald Reagan's presidency that scholars had requested and archivists had determined posed no threat to national security or personal privacy. Under the Presidential Records Act of 1978, the documents were to become available after Jan. 20, 2001, twelve years after Mr. Reagan left office. Mr. Reagan's administration was the first covered by the 1978 law.

...

On Nov. 1, 2001, President Bush issued an even more sweeping order under which former presidents and vice presidents like his father, or representatives designated by them or by their surviving families, could bar release of documents by claiming one of a variety of privileges: "military, diplomatic, or national security secrets, presidential communications, legal advice, legal work or the deliberative processes of the president and the president's advisers," according to the order.
President Bush intends to do whatever possible to hide his actions from scrutiny. At every turn, at every step, the administration seeks to act in secrecy, to prevent the public from being able to hold the administration accountable for its actions. Al Qaeda's attack merely provided the administration with the pretext to push for levels of secrecy that it had desired from the start.

As of March 2005, the rate of classification of information had increased 75% since President Bush took office, and as Steven Aftergood demonstrated, this is part of a larger pattern whereby the public is restricted access to information regardless of whether or not it is classified. As he puts it:

Information is the oxygen of democracy. Day by day, the Bush administration is cutting off the supply.
The administration has even gone so far as to attempt to reclassify information already in the public domain (a process started at the end of the Clinton administration)

The restoration of classified status to more than 55,000 previously declassified pages began in 1999, when the Central Intelligence Agency and five other agencies objected to what they saw as a hasty release of sensitive information after a 1995 declassification order signed by President Bill Clinton. It accelerated after the Bush administration took office and especially after the 2001 terrorist attacks, according to archives records.

But because thereclassification program is itself shrouded in secrecy — governed by a still-classified memorandum that prohibits the National Archives even from saying which agencies are involved — it continued virtually without outside notice until December. That was when an intelligence historian, Matthew M. Aid, noticed that dozens of documents he had copied years ago had been withdrawn from the archives' open shelves.
Looking into examples of the Bush administration's secrecy, one point keeps recurring again and agan, which is best expressed by John Dean: "their secrecy is extreme - not only unjustified and excessive but obsessive."

As an example of this obsessive secrecy, consider that after 9/11, when finally a congressional inquiry had begun into the government's failure to prevent hijackers with boxcutters from stealing planes and flying them into the World Trace Center and the Pentagon despite the Bush administration opposing the inquiry at every step, it was declassified that in July of 2001 intelligence warned that Bin Laden was determined to strike the United States. But at the same time, George Tenet ordered the congressional inquiry to not disclose whether or not the President had been made aware of this information - it was said to be a matter of national security.

This is transparent. What other possible reason could there be to keep secret this information other than the desire to hide the fact that the President had been alerted to the potential danger of an al Qaeda attack in the United States?

You see this pattern repeat itself over and over again. We invade Iraq and the claims made for the invasion were sytematically wrong, the administration opposes an inquiry. New Orleans is wiped off the map and an inquiry is opposed. What other reason could there be for this secrecy other than to block the administration from accountability for its actions?

We were told no surveillance would take place without a warrant. Congress was told that the administration had all the tools it needed to protect the nation. Secretly the administration had decided otherwise, had decided to use tools that it was not given legally, had decided that laws no longer applied to the President. How can such a private decision be a matter of national security? Is not the President obligated to at least ask the public and the rest of its government if he is to be king? At least Napoleon went through the pretense of allowing the public to vote him First Consul of France.

This is not a complicated matter, the administration claims the right to break any law, as it has demonstrated 750 times, so any discussion about amending laws and such is pointless. That's what so frustrating about Glenn's post yesterday - what point does it matter what Arlen Specter or anyone in Congress says about the law? The President has declared he will not be bound by laws. Here is the issue: the administration claims the power to act unilaterally (without bounds) in the name of national defense; that is either acceptable or it is not. The rule of law either applies or it does not. Either we are a democracy or we are not. As a New York Times editorial put it yesterday

Mr. Specter's lawyers have arguments for many of these criticisms, and say the bill is being improved. But the main problem with the bill, like most of the others, is that it exists at all. This is not a time to offer the administration a chance to steamroll Congress into endorsing its decision to ignore the 1978 intelligence act and shred constitutional principles on warrants and on the separation of powers. This is a time for Congress to finally hold Mr. Bush accountable for his extralegal behavior and stop it.
The administration has claimed that neither Congress nor the Courts can review its actions. Congress doesn't seem to mind very much, and the administration avoids the courts whenever it appears that it might be challenged. It claims "state secrets" would prevent a court from judging its actions. But this administration has lost the right to the benefit of the doubt. The right to keep secret the President deciding that laws no longer apply to him, that he can be a judge in his own cause, can not be a matter of national security. As Thomas Paine put it (quote borrowed from How Would a Patriot Act?):

in America the law is king. For as in absolute governments the king is law, so in free countries the law ought to be king.
It has become apparent that "national security" is used by the administration as a synonym for its own private political interests, private political interests that would make George W. Bush king ... Madison's nightmare.

It is not transparency and openness that threatens our security, but obsessive and excessive secrecy. Removal of oversight of the government is a threat to our security. When our government operates in the shadows we have no idea whether or not what they are doing is in our interest. The sad, likely truth is that the events of September eleventh, 2001 could have been prevented if better analysis of the existing intelligence had taken place - intelligence that was gathered without the Patriot Act, without the NSA being authorized to spy on Americans without a warrant, without secret CIA prisons, without "enhanced interrogation tactics", without President Bush asserting the right to unilaterally decide when the Constitution is applicable. This administraton full of ideologues, immune from consideration of reality, deliberating in secret, hiding their motives from us, is what threatens us. Look at their track record. They were warned that their abandonment of the Geneva Conventions would invite abuse, they did it anyway. They were warned invading Iraq would require more troops, they claimed otherwise and fired the general who told them that. They were warned the invasion would cost over two hundred billion dollars, they claimed otherwise and fired the person that told them that. They were warned that there was no evidence linking Iraq to WMD's or al Qaeda, they claimed it anyway. They were advised to plan for a post invasion occupation, they decided not to for ideological reasons. They were warned that an insurgency would soon grow out of control in the newly occupied Iraq, they removed the CIA agent responsible for the report. Et cetera.

Reality does not affect their beliefs. They plan to shape reality with their beliefs.

So maybe it's fitting that yesterday the Senate Judiciary Committee approved an amendment to prohibit flag burning. If we're going to be a police state, we may as well start acting like it. Afterall, as Ed Brayton notes

One of the very first things that Hitler did upon seizing power in Germany was ban the burning of the German flag; the punishment was imprisonment. In China, where we all watched the student protestors at Tianenman Square burn the Chinese flag, their actions result in a minimum of 3 years in prison. The other two nations that punish those who burn their flag at the moment: Cuba and Iran.
Nevermind Bob Kerrey's silly belief that "real patriotism cannot be coerced." This is a brave new world, after all. The first amendment is a liability that we can no longer afford. Otherwise, George W. Bush might not be able to save us.

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