Government of secrets lives on
WASHINGTON — It’s as if the United States has two governments, one open and one very much not. President Barack Obama leads both, trying not to butt heads with himself.
Since becoming president, Obama has churned out an impressive stream of directives flowing from his promise to deliver “the most transparent administration in history.”
He established a center devoted to declassifying records and making them public. He announced an open government initiative. Dizzying quantities of information poured into public databases. New ways were devised to show taxpayers how their money is spent. Allegiance was pledged to the rule of law. Then there’s the other government. It prosecutes leakers like no administration before it. It exercises state-secrets privileges to quash court cases against it. It hides a vast array of directives and legal opinions underpinning government actions — not just intelligence and not all of it about national security.
Now it’s known to conduct sweeping phone-records and Internet surveillance of ordinary people in programs kept on the lowdown until an employee of a National Security Agency contractor revealed them.
Steven Aftergood, director of the Project on Government Secrecy for the Federation of American Scientists, says the U.S. has both the most open government in the world and arguably the most closed. Daily it publishes an unmatched avalanche of information. But daily its national security secrets also grow by staggering amounts.
On the bright side, Aftergood says, the government puts more and better information online than ever before. But at the core, “Classification activity is very high. Secrecy has become an obstacle in many areas of public policy. And we still are living with a classification system that is a legacy of the Cold War era.”
The secret side of government has many pillars, some fashioned with a compliant Congress, others raised from within.
A look at some, and the weird politics swirling around them:
WHICH SIDE ARE YOU ON AGAIN?
In the suddenly unfolding debate over secrecy in government, it takes a spreadsheet to know who stands where. The normal partisan divide that cleaves almost everything else in Washington is no guide. Obama at times seems to be on both sides at once.
In one corner, there’s Democrat Dianne Feinstein of California, who leads the Senate Intelligence Committee, tagteaming with Republican John Boehner of Ohio, the House speaker. Both are steaming over the actions of Edward Snowden, the NSA contractor who leaked the surveillance programs. “Treason,” said Feinstein. “Traitor,” said Boehner. National security hawks in both parties agree.
In the other corner, an unusual collection of liberals, civil libertarians and conservatives suspicious of government’s reach is aligned against Big Brother. The American Civil Liberties Union, tea party favorites and dyed-in-the-wool progressives are these odd bedfellows.
“It’s my fear that we are on the verge of becoming a surveillance state,” said Rep. John Conyers of Michigan, the top Democrat on the House Judiciary Committee.
Some other Democrats, too, are proving hostile to the administration on this. Sens. Ron Wyden of Oregon and Mark Udall of Colorado have dogged the administration to back off what they see as an assault on civil liberties and challenged its claims that the telephone and email monitoring programs helped stop specific acts of terrorism.
The debate places them and some other congressional critics in an awkward spot. Intelligence committee members are briefed on certain national security secrets but not allowed to talk about them. That has left Udall, for one, champing at the bit. He told The Denver Post he was well aware of the monitoring programs that shocked lawmakers who hadn’t been clued in and did “everything short of leaking classified information” to bring it to light.
As a candidate, Obama criticized Bush for putting forward a `false choice between the liberties we cherish and the security we provide.” Now he says, “You can’t have 100 percent security and also then have 100 percent privacy and zero inconvenience,” and, “We’re going to have to make some choices as a society.”
SECRET DIRECTIVES AND PRIVILEGES
These tools have been used just as vigorously as in the Bush years, watchdogs say, despite modest steps toward accountability.
The state-secrets privilege helps the government withhold sensitive national security records in court proceedings. But in its 2013 review of Obama’s first term, the Center for Effective Government says both the Bush and Obama administrations used the privilege to dismiss entire cases against the government, not just protect specific records.
The government also operates with a range of regulations, legal opinions and policy directives that never see the light of day.
Targeted drone killings, the recently leaked phone and email surveillance programs, and a former Bush program of warrantless wiretapping came from these shadows.
“The administration has continued to use secret `laws’ to make controversial decisions without oversight, to disallow legal challenge, and to withhold key decisions and memoranda that have the force of law from public scrutiny,” the center says.
Certain actions are subject to court scrutiny but it’s a court like none other. The Foreign Intelligence Surveillance Court hears cases inside vaults in a federal courthouse. Legal justifications are classified, there’s no lawyer countering the government’s case for authority and the decisions are rarely made public.
In one step toward openness, the Obama administration has disclosed some secret legal opinions, but only those from the previous administration, regarding the treatment of terrorist detainees and some other matters specific to the Bush years.
LOOSE LIPS SINK SHIPS
The Obama administration has pursued an unprecedented number of investigations of those who leak government secrets and taken extraordinary steps in doing so. Among them are the secret seizure by the Justice Department of two months of phone records for more than 20 Associated Press telephone lines and the gathering of emails of Fox News journalist James Rosen, in both cases to try to identify sources of stories.
At the same time, a 2012 law signed by Obama improved protections for whistleblowers, generally understood to be those in government who expose waste, fraud or abuse. Spillers of national security secrets needn’t apply.
All governments always have kept secrets on the grounds that sensitive information cannot fall into the hands of adversaries and that frank discussions among nations and inside the government must stay confidential until they no longer matter. But history is rife with secrets kept for political purposes, to conceal corruption and simply to avoid inconvenience or embarrassment.
The sensational leak of the classified Pentagon Papers in 1971 revealed pernicious efforts to mislead the public on the depth of U.S. involvement in Southeast Asia. Cascading revelations in that time laid bare domestic spying to disrupt civil rights and anti-Vietnam War protests, assassination plots against foreign leaders and a campaign of character assassination against Martin Luther King Jr.