War Powers, War Lies: Part 20: Mine To Know

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War Powers, War Lies: A Series: Part XX: Mine To Know


            As we have seen, our national leaders lust for impunity from criticism, and in time of war they have tended to arrogate to themselves, specifically as war powers, means to suppress critics.  Because the First Amendment has developed to make it nearly impossible to jail wartime critics simply for being wartime critics, our government have sought out new tactics.  A newer one particularly employed by the current administration is an effort to starve criticism by cutting off information.


            In theory the government belongs to us all and works for us all, and the actions it takes and the documents it generates and retains with taxpayer money should be available to taxpayers upon request.  In practice, government bureaucracies sequester massive quantities of information.  War affords heightened justification for that sequestration.


            To curb the governmental impulse to conceal, Congress has passed many laws: the Presidential Records Act,  the Federal Advisory Committee Act,  the Foreign Intelligence Surveillance Act,  the General Accounting Office Act, and whistleblower provisions of the Civil Service Reform Act among them.  Perhaps most important is the Freedom of Information Act (“FOIA”),  which allows anyone to require the government to stand and deliver information within its possession.  As originally passed, none of these laws made exceptions for wartime circumstances.


            The men now occupying the White House have always hated these laws.  Their opposition was chronicled in Prof. Alasdair Roberts’ study, Blacked Out (2006).   For instance, when first passed, FOIA had no provisions for judicial review; if you were turned down by the agency holding the documents you wanted, you were out of luck.  In 1974, outraged by information abuses in Watergate and Vietnam, Congress amended FOIA to provide for judicial review of denials.  President Ford vetoed the change.  Among those who counseled the now sainted Gerald Ford to take this indefensible step were Donald Rumsfeld, by then Ford’s Chief of Staff (and Dick Cheney’s boss), and Antonin Scalia, then head of the Justice Department’s Office of Legal Counsel. (Congress fortunately overrode this veto.)


            In January 2002 Dick Cheney told ABC News that the gradual passage of acts like those referenced above constituted “an erosion of the powers and the ability of the President of the United States to do his job.” And of course Cheney famously led efforts to keep the public from learning the identities of those who had participated in the 2001 meetings of a governmental organization, the National Energy Policy Group, presumably to rob critics of the ability to demonstrate factually the way the energy industry was driving the formulation of policy.


            Likewise, starting in March 2001, Alberto Gonzales, then of the Office of Legal Counsel, reportedly issued the first of three orders delaying beyond a lawful date compliance with the Presidential Records Act as to the release Reagan Administration records.  This was followed by  an Executive Order claiming a right of current administrations to block the release of records created by previous administrations. 


            Then came 9/11, creating a justification not only for the disastrous Iraq adventure but also for massive exclusion of the citizenry from learning the workings of its own government. 


            An early intimation of the assertion of a pro-secrecy policy as, in effect, a war power, came in an October 12, 2001 memorandum of Attorney General John Ashcroft to all government agencies. Shorn of double-talk praising FOIA, the memo urged all agencies to slow down the disclosure of all information under FOIA, in part because of concerns about security.  In the name of security, Congress blew another hole in FOIA with the Homeland Security Act of 2002  and yet another with the Critical Infrastructure Information Act of 2002.   These laws shielded from public disclosure information relating to “critical infrastructure” operated by the private sector.   The effect of these laws on terrorism is unknown; a known effect was to roll back the availability of information to communities seeking to learn about environmental hazards created by the presence of industrial facilities in their neighborhoods.


            Ashcroft used the USA PATRIOT Act, a response to the terrorist threat, as justification for a claimed option to exclude the public from previously public deportation hearings.   He successfully fought lawsuits by the ACLU and others to learn the names of the secret detainees seized around the world in 2001 and 2002.  He largely stymied Congressional inquiries to learn the same information.   It took years for defense lawyers and the press to secure the names of those held at Guantanamo; we still lack an accounting of those held in the secret international CIA gulag.  The secret detentions and all of the issues that surround them (torture, military tribunals, habeas corpus, etc.) are at the core of the debate about this country’s political course.  Hence this information, of all governmental information developed in the last five years, is perhaps the most critical to the fostering of a well-informed public debate.


            At the same time, the Administration began a program of aggressive classification of government documents and a slowdown or even reversal of declassification.  FOIA allows for withholding of classified information.  Under the new regime, however, there were a host of new classifications not contemplated under FOIA or the practice thereunder, and of unknown validity or impact: “Sensitive But Unclassified,” or “Sensitive Security Information” or “For Official Use Only” or “Homeland Security Sensitive” or “Law Enforcement Sensitive.”   In 2004, 15.6 million documents were classified, nearly double the number in 2001, while the statutory declassification process, dropped from 304 million pages in 1997 to just 28 million pages in 2004.   In many cases, information which had been available publicly was taken off public shelves and websites, without notice or acknowledgment. 


            The impact, as the New York Times complained in 2005, was that “innocuous White House press pool reports are now subject to classification, while historians complain of yearlong delays before academic requests are even acknowledged, never mind fulfilled.  Environmentalists can’t see routine dam and river drainage maps in the name of homeland security.” 


            We have been told by the White House that we shall be on a war footing with Islamic fundamentalist terrorist for a generation.[Comment17]   Apparently this “wartime” expansion of governmental secrecy will therefore likewise continue indefinitely, unless the public musters the indignation and the will to stop it.


            It must be stopped, of course.  It is intolerable that so much information, so much of it innocuous, should be gathered and created in our name and at our expense, and we be denied it.  But it is not merely a matter of declassifying innocuous information without military significance.  We also need to know more about things that are quite arguably war secrets (conceding only for the sake of argument that war is what we are in).


            The hidden CIA prisons and the secret NSA surveillance program, revealed, respectively, by the Washington Post on November 2, 2005 and the New York Times and Los Angeles Times on December 16, 2005, would certainly have qualified as war secrets under this analysis.  But they were also matters in which the public had a legitimate interest, and an urgent need to learn of and debate.  It may well be that the rage displayed by the White House at these revelations (Bush called the NSA leak a “shameful act”)  was the “bridge too far” in its campaign to keep the public behind its concealments – and its “war.”  While as of late 2005, the American public was still behind the “war” (with 50% believing we had done the right thing to invade), that number dropped to 46% by the end of the year.   The public manifestly cared not only about the mission but about the means by which it was accomplished. 


            The Administration should have leveled with the American people about these means.  These were matters far too important to have been kept as war secrets.  The reflexive stance of the Administration, as we have all learned, is that everything that has any conceivable intelligence use, either for us or our adversaries, is a war secret.  As such it is by definition too sensitive to be revealed to anyone, be that person a journalist, a scholar, the defense counsel for the accused in a Guantanamo military commission, or someone like Maher Arar suing the government because he was abducted, rendered to a third country, and tortured, under a misapprehension as to his identity.  If that standard were effectively implemented, however, the ongoing national debate about our values in a time of war would stifle for want of basic data.


            The response of the Administration and its apologists has been, essentially, that protection of national security trumps solicitude for national debate about wartime values.  This is, of course, terribly convenient for any administration that wants to silence critics, especially since the war is avowedly permanent.  The silencing of critics would then become permanent as well.  This is not acceptable.


            Obviously, then, we need a new approach, one more solicitous of the public’s need and right to know.  We need a revived and strengthened FOIA, implemented with a new bureaucracy to undo the overclassification that the Bush bureaucracy has wrought.  Obviously we won’t get these things tomorrow.


            In the meantime, however, there remain ways in which the balance gets righted and the public informed, notwithstanding all governmental efforts to prevent it.  What does not come out through the front door is apt to exit the windows.  Professor Roberts makes a comparison worth pondering.  


            In 1969, Daniel Ellsberg, then a RAND Corporation analyst engaged to write a classified history of the Vietnam War, was given the documents that the world later knew as the Pentagon Papers.  Those documents were logged into his office safe by a password so secret it was outside even the RAND security system.   When he decided that the documents needed to be leaked to the New York Times, it was no light matter, even from a logistical standpoint.  It took him six weeks of covert effort to make photocopies of the 7,000 pages.  Breaking his pledge of secrecy and overcoming security precautions designed to enforce that pledge was quite difficult.


            By contrast, in December 2002, Treasury Secretary Paul O’Neill was dismissed for want of political loyalty, i.e. criticizing Bush’s economic policies, and confirming that the Iraq invasion had been planned since the first National Security Council meeting of the Bush administration.[Comment22]   As Roberts puts it, O’Neill “walked out of his office with a CD-ROM that contained 19,000 documents.”  Just like that.


            You cannot really classify the truth for all that long, even in “wartime.” 

            We would be far better served if the notion of information classification were completely severed from the concept of war powers.  We need one Constitution, as the Supreme Court said long ago, in war and in peace.   And we need one FOIA too.    

Copyright (c) Jack L. B. Gohn

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