Thursday, December 16, 2010

More Thoughts on WikiLeaks

In the last weeks, WikiLeaks and its co-founder, Julian Assange, have been the center of controversy with the publication, both online and in selected newspapers, of classified diplomatic dispatches. The US State Department expressed outrage, The Justice Department threatened arrests, politicians and pundits from new organizations were up in arms (that's putting it lightly). Few of them have bothered to ask how this situation could have happened. The officials have claimed that leaks were a breach in national security and "endangered the lives of service personnel" although they were rather hard pressed to cite any specific examples.

Assange for his part claim claims immunity from prosecution on the basis of the right to a free press to hold governments accountable. As I suggested in an earlier post on this subject, the reasons abound. And blaming the messenger is, without question, missing the point.


Outrage and Opportunities

Knowing that it was inevitable that from time to time foolish, corrupt, or shortsighted individuals would win positions of responsibility in the government, the Founders came up with a system that would limit anyone’s ability to become a tyrant or to otherwise wreck the country. And over the next century and a half, the system worked as the Founders had designed it to work.”

The Federalist Papers, James Madison

If George Bush saw the terrorist attacks of September 11, 2001 as a call for action against "evil-doers," Dick Cheney, his vice president, took a slightly different view. He saw the crisis as an opportunity to expand the powers of the president beyond- well beyond- what the founders has ever intended. In the name of expediency, the usual process had to be dismissed The president's approval rating before 9-11 was around 55% but in the days after it rose to an unheard-of 90% and nobody could know how long this kind of consensus for immediate action would last. Cheney did not appear to hesitate.

According the Washington Post, within hours of the 9/11 attacks, Vice President Dick Cheney began working to secure additional powers for the White House. In fact, the vice-president had already had plans in place to begin acquiring these powers for the executive branch before the attacks, but had not begun to execute them.

Less than two weeks after the attacks, a memo to the White House counsel, Alberto Gonzales, was issued from John Woo and Robert Delahunty, attorneys for the Justice Department. The crux of the memo was the claim that President Bush had sweeping powers in wartime which, in effect, overruled many parts of the US Constitution. It stated that Bush could order military operations inside the United States.

Additionally, the memo supported the notion that Bush could suspend First Amendment freedoms. “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” It adds that “the current campaign against terrorism may require even broader exercises of federal power domestically.”

The Bush-Cheney presidency's penchant for secrecy took a strange and rather ominous turn when on November 1, 2001, Bush signed Executive Order 13233 which limited public access to papers of all presidents since 1980. A 1978 law provided for the release of presidential papers 12 years after the president leaves office, so Ronald Reagan’s papers would have been released next year. Reagan issued an order in 1989 that called for disclosure of most of his official papers 12 years after he left office but under the new executive order the papers can be kept secret even if the president in question wants them released. President Bush’s father was vice president during the Reagan administration.

Former Nixon White House counsel John Dean wrote,"Bush and Cheney assumed office planning to take total and absolute control of executive branch information. The truth will be what they say it is. They will decide what the public should know and when, if ever.” The Late Historian Hugh Davis Graham, who will, before his death observed, “George W. Bush has a fetish for secrecy. And unless this executive order is overturned, it will be a victory for secrecy in government—a victory so total that it would make [former president Richard] Nixon jealous in his grave.” (This order was revoked on January 21, 2009 by President Obama.)

Had this been the only example of the Bush-Cheney fetish for extreme secrecy, it would simply be a case of bureaucratic mentality in action or perhaps a need for security in the face of a crisis.. And yet, this policy was certainly in place in the administration long before the terrorists attacked the Twin Towers.

Prior to that event, Cheney and General Accounting Office had been locked in a legal battle over its request the secret energy task force, chaired by Dick Cheney. The battle went on through the summer of 2001, with lawyers for the administration claiming that GAO had no authority. Later a White House document would be leaked to the Washington Post showing that officials from Exxon Mobil Corp., Conoco (before its merger with Phillips), Shell Oil Co. and BP America Inc. met in the White House complex with the Cheney aides. Earlier executives, having been called to testify at a congressional hearing, would even deny that meeting took place at all.

What took place in the meeting we still do not know. We can only speculate and imagine and by this very unusual and defensive behavior by the administration, one might easily assume the worst.

That, in fact, is the problem with a government keeping secrets. When the public, either directly or through its elected representatives, is denied access to the day to day running of its own government, it creates an atmosphere of suspicion and distrust, whether warranted or unwarranted. A vacuum of information is filled with conspiracy theories or a vague sense of distrust.

For Dick Cheney, however,  it was not merely a matter of secrecy in times of crisis. This was business as usual.

Stealth is among Cheney's most effective tools. Man-size Mosler safes, used elsewhere in government for classified secrets, store the workaday business of the office of the vice president. Even talking points for reporters are sometimes stamped "Treated As: Top Secret/SCI." Experts in and out of government said Cheney's office appears to have invented that designation, which alludes to "sensitive compartmented information," the most closely guarded category of government secrets. By adding the words "treated as," they said, Cheney seeks to protect unclassified work as though its disclosure would cause "exceptionally grave damage to national security.

Across the board, the vice president's office goes to unusual lengths to avoid transparency. Cheney declines to disclose the names or even the size of his staff, generally releases no public calendar and ordered the Secret Service to destroy his visitor logs. His general counsel has asserted that "the vice presidency is a unique office that is neither a part of the executive branch nor a part of the legislative branch," and is therefore exempt from rules governing either. Cheney is refusing to observe an executive order on the handling of national security secrets, and he proposed to abolish a federal office that insisted on auditing his compliance."

How much security, in the face of particularly ruthless brand of terrorism, is sufficient for a superpower that values its freedoms and its liberty? After all, who has defined how superpowers should behave, with regards to keeping secrets, especially after the collapse of the Soviet state? Yet, in a speech before newspaper editors in 1963, John F Kennedy lays out the problem succinctly when he said:

"Even today, there is little value in insuring the survival of our nation if our traditions do not survive with it. And there is very grave danger that an announced need for increased security will be seized upon by those anxious to expand its meaning to the very limits of official censorship and concealment."

Ironically, while on one hand the Bush-Cheney presidency claimed the need to liberate the oppressed masses in Iraq and in Afghanistan from abuse of tyrants and regimes, they would be applying the same methods to silence dissent in their own country.

In a complex and rapidly changing world, no president can know all that he needs to know or manage personally the vast array of responsibilities that have accrued to his office. As a consequence since WWII, Congress and the executive branch have collaborated in creating a large permanent and ever-expanding national security apparatus.

Although nominally serving the public, the institutions making up this apparatus go to great lengths to evade public scrutiny, performing their duties shielded behind layers of secrecy. Ostensibly this cult of secrecy exits to deny information to America's enemies. Its actual purpose is to control the information provided to the American people, releasing only what a particular agency or administration is eager to make known, while withholding (or providing in sanitized form) information that might embarrass or call into question its policies.

The Limits of Power, by Andrew J. Bacevich


Criticism and Recommendations

"Secrecy in the Bush Administration," a 81-page report produced by the Committee for Government Reform and requested by Rep. Henry Waxman of California, is a carefully composed and detailed exploration of the policies and methods that were used to effectively block any and all independent oversight of decisions by Bush officials. For anybody that still believed in a government of, for and by the people, it makes depressing reading. I will share the conclusions only.

This review of the nation's open government laws reveals that the Bush Administration has systematically sought to limit disclosure of government records while expanding its authority to operate in secret.

Through legislative changes, implementing regulations, and administrating practices, the Administration has undermined the laws that make the federal government more transparent ro its citizens, including the Freedom of Information Act, the Presidential Records Act, and the Federal Advisory Committee Act. At the same time, has expanded the reach of the laws authorizing the Administration to classify documents and to act without public or congressional oversight. Individually, some of the changes implemented by the Bush Administration may have limited impact. Taken together, however, the Administration's actions represent an unparalleled assault on the principle of open and accountable government.

The Bush-Cheney Administration's policy on classification of information was self-serving, designed to keep journalists from learning about the decisions and historians from learning about the past.

"In many of these cases, administration officials have used a "state-secrets defense," in which the government claims the information would endanger national security, even though the documents reveal little or nothing to that end,"writes Tara McKelvey, a senior editor at the Prospect, is a research fellow at NYU School of Law's Center on Law and Security in her article. She adds, "Often the best way to end speculation about governmental affairs is to release the documents so the real story can be told. Obama has supported this approach to governing, and his transition team has come up with recommendations for improving the current system of declassification."

This isn't to say that Obama as president did nothing. On the contrary, in December of 2009 President Obama issued Executive Order 13526, which sought to declassify and to re-organize the classification process. The order attempts to rectify the chaotic system that had developed under Bush-Cheney.

The rules laid out in the order are quite detailed with regards to what can be considered classified material and what cannot, who had access and a description of the levels of sensitivity. So, the key question in case against Bradley Manning, the probably source of the Wikileak material, is whether the executive order was actually put into effect and what caused its failure. There seems to have some major flaw in implementation. Or had the material been stolen prior to the order? How had the declassifying of older documents been progressing since the order? This is where the government should be closely looking, not searching for ways to punish Assange or to close Wikileaks.

Despite his advocacy for transparency in government, it is disheartening that the Obama administration's reaction to the WikiLeaks Crisis has been weak, confused and a betrayal of the much of what he has professed.

McKelvey suggests a possible broader solution, "..Experts are hoping that Obama will establish a National Declassification Center, a proposal that Obama endorsed during his campaign. The center would streamline the process of declassification, setting up a clearinghouse for decisions on releasing documents rather than leaving that to officials at individual agencies, where efficiency regarding declassification procedures can vary."


The Double Paradox

If there is a paradox about the US government's obsessive need to hide information which seems, for the most part, relatively innocuous, then the paradoxes work both ways. Few could argue- or should argue- that in a so-called liberal democracy, citizens should have access to certain kinds of information, especially regarding policies the government is using in their names.

However, isn't it also fair to ask, given the small percentage we have seen, what makes these particular documents a matter of pressing concern? Or to put it in another way, is this an actual wiki-LEAK of valuable information that enlightens citizens or is this merely a wiki-DUMP of thousands of day-to-day diplomatic correspondence, general news from specific locations, and official-sounding rumor? Is this actually journalism or simply exposure for its own sake?

According to a Congressional Research Service report, this could be a crucial factor as to whether the Justice Department can build a case for prosecution. In "Criminal Prohibitions on the Publication of Classified Defense Information" Legislative attorney, Jennifer K. Else analyses the various laws and statues, , including the Espionage Act; the extraterritorial application of such statutes; and the First Amendment implications related to such prosecutions against domestic or foreign media organizations and associated individuals. She concludes:

Whether the publication of national security information can be punished likely turns on the value of the information to the public weighed against the likelihood of identifiable harm to the national security, arguably a more difficult case for prosecutors to make.

The Supreme Court has had to deal with challenges to the limits to the First amendment in the past. Back in 1971, in the case Pentagon Papers trial, in which then-president Nixon attempted to prevent the publication of damaging leaked information, Justice Potter Stewart said this:

“In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry – in an informed and critical public opinion which alone can here protect the values of democratic government.”

Justice Stewart considered the executive branch to be..

"an awesome responsibility, requiring judgment and wisdom of a high order. I should suppose that moral, political, and practical considerations would dictate that a very first principle of that wisdom would be an insistence upon avoiding secrecy for its own sake.

For when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self protection or self-promotion. I should suppose, in short, that the hallmark of a truly effective internal security system would be the maximum possible disclosure, recognizing that secrecy can best be preserved only when credibility is truly maintained.”

The question that must now be asked is who gets to decides which is truly news and which actually essential for national security? A government that apparently more preoccupied with making things secret then with maintaining restrictions, or a public, that is often ignorant of the general developments in the world, easily panicked and distrustful of the means and motives of its own government.

According to our constitution, it would appear that the answer is the public's right to know supersedes the government's need for secrecy. I think John Kennedy said it best:

And that is why our press was protected by the First Amendment-- the only business in America specifically protected by the Constitution- -not primarily to amuse and entertain, not to emphasize the trivial and the sentimental, not to simply "give the public what it wants"--but to inform, to arouse, to reflect, to state our dangers and our opportunities, to indicate our crises and our choices, to lead, mold, educate and sometimes even anger public opinion.

Kennedy also asked newspaper editors to use their own judgment when dealing with sensitive information.

But I am asking the members of the newspaper profession and the industry in this country to reexamine their own responsibilities, to consider the degree and the nature of the present danger, and to heed the duty of self-restraint which that danger imposes upon us all. Every newspaper now asks itself, with respect to every story: "Is it news?" All I suggest is that you add the question: "Is it in the interest of the national security?"

That speech now seems rather quaint, doesn't it? It was obviously a different world. Did Kennedy hide things from public? Unquestionably. But then it has always been incumbent on the press to investigate and not wholly on the government to divulge. But that age, I fear, has passed forever.

Had the mainstream media been doing its job- even on a basic level- then the Assange's release of information would probably have seemed quite trivial. (At present, the mainstream media is treating Assange as a persona non grata. Time magazine ran a online vote for their "Person of the Year." Despite the fact that Assange received an overwhelming number of votes, Mark Zuckberg, founder of FaceBook, was given the award. The editors defended their decision with the strange and rather silly excuse that "Assange sees the world as filled with real and imagined enemies; Zuckerberg sees the world as filled with potential friends.")

The failure of national news organizations to investigate the issues in detail and to demand the access denied them by an overzealous administration's desire for absolute control has been a major contributing factor to the problem we see now. Add to this the corrosive effect of media corporations with political agendas and one sees a total failure to fulfill the duty of the free press that the founding fathers had once envisioned.


Words and Actions

But for the moment, the theatre of politics is in high swing with one blustering windbag in Washington attempting to outdo the other in moral outrage and patriotic zeal. Senator Joe Lieberman, Independent Senator from Connecticut, called the leaks "an outrageous, reckless, and despicable action" And yet this is the same man who co-authored “The VOICE Act which was designed to help the Iranian people stay one step ahead of their regime, in getting access to information and safely exercising freedom of speech, assembly, and expression online.” I doubt very much whether he has made any connection between his words now and his actions before.

Hillary Clinton, Secretary of State, is in a similarly embarrassing situation in the light of her cheerful inspiring speech on Internet freedom and its power to keep governments accountable.

"Some countries have erected electronic barriers that prevent their people from accessing portions of the world’s networks. They’ve expunged words, names, and phrases from search engine results. They have violated the privacy of citizens who engage in non-violent political speech. These actions contravene the Universal Declaration on Human Rights, which tells us that all people have the right “to seek, receive and impart information and ideas through any media and regardless of frontiers.” With the spread of these restrictive practices, a new information curtain is descending across much of the world. And beyond this partition, viral videos and blog posts are becoming the samizdat of our day."

And finally there is the president himself, in his Nov. 16, 2009 speech at a Shanghai town hall meeting who in a question and answer session with the future leaders of China was heard to say,

I'm a big supporter of non-censorship. This is part of the tradition of the United States that I discussed before, and I recognize that different countries have different traditions. I can tell you that in the United States, the fact that we have free Internet -- or unrestricted Internet access is a source of strength, and I think should be encouraged. ..I actually think that that makes our democracy stronger and it makes me a better leader because it forces me to hear opinions that I don't want to hear. It forces me to examine what I'm doing on a day-to-day basis to see, am I really doing the very best that I could be doing for the people of the United States.

Fine words and I happen to support the President's ideas on this subject fully. It's too bad that when push came to shove, he didn't support them himself. I am sure he could argue his case about national security and classified material. However, at his next speech to young people about the glories of American openness, he shouldn't be too surprised to hear muffled laughter or grumpy snorts.



  1. So the bottom line is that free speech is ok only when the government says so ... ???

  2. Here's an interesting video from c-span


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