Federal Secrecy Protects the Crimes of Every President

Future of Freedom Foundation, January 25, 2021

Federal Censorship Protects Leviathan’s Crimes

by James Bovard

Ever since the 9/11 attacks, Republicans and Democrats have conspired to keep Americans increasingly ignorant of what the federal government does. The number of secret federal documents skyrocketed, and any information that was classified supposedly cannot be exposed without dooming the nation.
Thanks to pervasive secrecy, we have an Impunity Democracy in which government officials pay no price for their abuses.

Politicians and federal agencies recognize that “what people don’t know won’t hurt the government.” James Madison, the father of the Constitution, declared in 1798 that “the right of freely examining public characters and measures, and of free communication among the people thereon … has ever been justly deemed, the only effectual guardian of every other right.” But this right has faded badly in recent decades. During the 2020 Senate impeachment trial of Donald Trump, Senate Minority Leader Charles Schumer warned that if the Senate did not vote to hear witnesses, “this country is headed towards the greatest cover-up since Watergate.”

Actually, “conventional wisdom” in the nation’s capital is often the result of cover-ups, ignorance, and servility. Daniel Ellsberg, who risked life in prison to leak the Pentagon Papers, observed in 2002, “It is a commonplace that ‘you can’t keep secrets in Washington’ or ‘in a democracy.’ … These truisms are flatly false…. The overwhelming majority of secrets do not leak to the American public.”

Since the 1990s, the number of documents classified annually by federal agencies increased more than tenfold. In 2004, Rep. Chris Shays (R-Conn.) derided the federal classification system as “incomprehensibly complex” and “so bloated it often does not distinguish between the critically important and the comically irrelevant.” The New York Times reported in 2005 that federal agencies were “classifying documents at the rate of 125 a minute as they create new categories of semi-secrets bearing vague labels like ‘sensitive security information.’”

The more information the government withholds, the easier it becomes to stampede people with deceptive disclosures. As a federal appeals court warned in 2002, “When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation.” The current classification system combines the worst aspects of cover-ups and arbitrary power.

Classification can be a political flag of convenience that politicians exploit to dominate the media. New York Times columnist Maureen Dowd observed in 2006 that “the entire Iraq war was paved by [Bush administration] leaks. Cheney & Co. were so busy trying to prove a mushroom cloud was emanating from Saddam’s direction, they could not leak their cherry-picked stories fast enough.” Bush administration disclosures of sensitive information were often handed on a silver platter to pliant journalists. Newsweek’s Richard Wolffe explained the Bush White House method: “They declassify when they feel like it. I’ve been with senior administration officials who have just decided to declassify something in front of me because it’s bolstering their argument.”
Under Obama

Each classified document is tacitly backed by a federal iron fist ready to squash anyone who discloses it without permission. William Leonard, former chief of the federal Information Security Oversight Office, complained in 2011 that the Obama administration had “criminally prosecuted more leakers of purportedly classified information than all previous administrations combined.”

The Obama administration portrayed leaking classified information to the media as worse than spying for a hostile government. The Obama Justice Department declared in 2011 that government officials who “elected to disclose the classified information publicly through the mass media” were “posing an even greater threat to society” than were foreign spies. Unless, of course, the leaks were approved by political appointees to serve the president’s purposes. Obama administration officials compared former NSA analyst Thomas Drake to mass killers and terrorists after he was accused of leaking information on NSA boondoggles to the Baltimore Sun. Drake and his lawyers heroically whipped the Justice Department in federal court.

New York Times reporter James Risen, a courageous Pulitzer Prize winner, spent almost a decade in the federal crosshairs after his 2006 book, A State of War, exposed the NSA’s illegal warrantless wiretapping and other federal crimes. Justice Department official Robert Parker compared Risen’s case to a reporter who received drugs and then refused to expose his source. Robert Litt, general counsel for the Director of National Intelligence, compared journalism to drunk driving to justify punishing any journalist who published confidential information. But the Justice Department could not prove Risen’s disclosures harmed anything except the credibility of the government.

When Risen appealed his case to the Supreme Court, he declared, “Compelling journalists to testify about their conversations with confidential sources will … create the inevitable appearance that journalists either are or can be readily converted into an investigative arm of the government.” But the Obama administration’s brief told the Supreme Court that “reporters have no privilege to refuse to provide direct evidence of criminal wrongdoing by confidential sources.” The administration also invoked “the uniquely federal interest in preventing the unlawful disclosure of classified national-defense information” to sway the Court not to hear the case. Risen labeled the Obama administration as the “greatest enemy of press freedom” in our time. He also declared, “The attorney general of the U.S. has been turned into the nation’s chief censorship officer.”

The Obama administration believed that its classification decrees were so sacrosanct that no federal judge could overturn them. “We don’t think there is a First Amendment right to classified documents,” Justice Department lawyer Catherine Dorsey told a federal judge in 2015. Dorsey agreed that the “government’s position is tantamount to claiming the Court ‘has absolutely no authority’ to unseal evidence even if it’s clear the government’s bid to keep it secret is based on ‘irrationality’ or that it’s ‘hiding something,’” as the Intercept reported. Expansive definitions of secrecy provide a pretext to harass anyone who dissents from the official line.

William Binney, a legendary retired National Security Agency computer expert, was targeted because he was suspected of leaking classified details of NSA illegal surveillance years after he left the agency. Despite his voluntarily agreeing to several FBI interviews, a dozen federal agents raided his home. According to the New York Times, one agent “ran upstairs and entered the bathroom where Mr. Binney was toweling off after a shower, pointing a gun at him. Agents carried away a computer, disks, and personal and business records.” Despite finding no evidence of criminal wrongdoing, NSA stripped Binney of his security clearance, thereby destroying his consulting business. The feds eventually cleared him of any wrongdoing, but “the investigation derailed his career and changed his life,” the New York Times reported. Binney commented, “After a raid like that, you’re always sitting here wondering if they’re coming back. This did not feel like the America we grew up in.”
Selective censorship

Hundreds of thousands of former officials and military personnel with security clearances must allow pre-publication reviews of their books and other writings. Former Justice Department lawyer Jesselyn Radack observed that pre-publication review “has always been a filter to promote fawning memoirs by senior government officials while censoring whistleblowers and critics.” A 2019 lawsuit claimed that the pre-publication censorship vested excessive power in government officials “who can delay or discriminate against lower-ranking people who criticize government actions, while speedily clearing favorable memoirs and other writings by retired senior officials.” Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, declared, “This far-reaching censorship system simply can’t be squared with the Constitution.”

Torturers have benefited mightily from censorship. Mark Fallon, a veteran counterintelligence officer and counterterrorism expert, wrote a book entitled Unjustifiable Means: The Inside Story of How the CIA, Pentagon, and US Government Conspired to Torture. But his account of the torture regime was badly delayed and heavily censored. Fallon asserted that much faster, better treatment was given to books by the architects and apologists for CIA torture, including former CIA director George Tenet, acting general counsel John Rizzo, and former Counterterrorism Center chief Jose Rodriguez.

Similarly, when former FBI counterterrorism agent Ali Soufan wrote a book on CIA torture abuses, the CIA demanded that Soufan — who was on-site for brutal interrogations — remove the pronouns “I” and “me” from his narrative. The CIA also deleted quotations in his book that had previously appeared in congressional hearing transcripts.

While books by former FBI and CIA agents can be endlessly delayed and heavily censored, the feds speedily approved memoirs by Hillary Clinton and former FBI chief James Comey.

Federal censorship may have had a cameo role in the congressional case against Trump. John Bolton wrote a book about his experiences as Trump’s national-security adviser that was said to provide additional information regarding Trump’s dealing with the Ukrainian government. Trump was impeached by the House of Representatives for his dealings with Ukraine, though the Senate failed to convict and remove him from office. Bolton’s lawyer denied the book contained classified information, but previous manuscript reviews of other would-be authors have dragged out for months or years. The Trump administration sought to block the book’s release but federal judge Royce Lamberth approved publication in June, though he did state that Bolton had “gambled with the national security of the United States” by opting out of a pre-publication review process. In September (2020), federal prosecutors convened a grand jury to pursue charges relating to Bolton’s book.

The growth of government secrecy sparks practically an arms race by citizens seeking to learn what politicians are doing before it is too late to stop them. Official lies have done vastly more harm to America than unauthorized disclosures. Lies subvert democracy by crippling citizens’ ability to rein in government. Citizens are left clueless about perils until it is too late for the nation to pull back. In his 1971 opinion on the Pentagon Papers case, Supreme Court Justice Hugo Black declared that a free press has “the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.” Unfortunately, the media’s acquiescence to mass secrecy has long betrayed that duty. If Americans had contemporaneous access to the actual information in government files, far more citizens would recognize the false claims used to plunge the nation into one foreign debacle after another.

When federal judge Amy Berman Jackson sentenced former Trump aide Rick Gates early this year, she declared, “If people don’t have the facts, democracy doesn’t work.” But Republicans and Democrats in Washington have long since approved denying Americans the facts millions of times a year. Unfortunately, secrecy and lying are often two sides of the same political coin.

The more secrets politicians keep, the less trust they deserve. Secretary of State Hillary Clinton declared in 2012, “Lack of transparency eats away like a cancer at the trust people should have in their government.” And the federal government is giving citizens trillions of reasons each year for distrust.

Thanks to pervasive secrecy, we have an Impunity Democracy in which government officials pay no price for their abuses. If democracy depends on transparency, and government transparency is an illusion, then what is U.S. democracy? We can either have vast secrecy or we can have “government under the law.” We cannot have both, and to pretend otherwise is to forfeit our liberty.

This article was originally published in the December 2020 edition of Future of Freedom.



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