by James Bovard
Thanks to friendly courts, the Deep State continues to avoid accountability, triumphant at home and abroad.
Secrecy is the ultimate entitlement program for the Deep State. The federal government is creating trillions of pages of new secrets every year. The more documents bureaucrats classify, the more lies politicians and government officials can tell. In Washington, deniability is prized far more than truth.
At the end of the Trump era, the Deep State is triumphant at home and abroad. Trump’s epic clashes with federal intelligence and law enforcement agencies helped cripple his administration, and they illustrate the continued danger of Deep State secrecy. If all of the FBI’s shenanigans on Russiagate came to light, it would be far more difficult for the FBI to manipulate American politics and presidents in the future. If CIA records on Syrian rebels were exposed, the Biden administration would have far more difficulty dragging America back into the Syrian civil war. But both seem unlikely. Recent court rulings make clear how badly Trump failed to drain the swamp.
On January 12, 2017, FBI chief James Comey attested to the Foreign Intelligence Surveillance Act court that the Steele dossier used to hound the Trump campaign had been “verified.” But on the same day, Comey emailed then-Director of National Intelligence James Clapper: “We are not able to sufficiently corroborate the reporting.” That email was revealed last week thanks to a multi-year fight for disclosure by the Southeastern Legal Foundation.
The first three years of Trump’s presidency were haunted by constant accusations that he colluded with Russians to win the 2016 election. The FBI launched its investigation based on ludicrous allegations from a dossier financed by the Hillary Clinton presidential campaign. In late 2019, an Inspector General report confirmed that the FBI made “fundamental errors” and persistently deceived the FISA Court to authorize surveilling the Trump campaign.
If the FBI’s deceit and political biases had been exposed in real time, there would have been far less national outrage when President Trump fired Comey. Instead, that firing was quickly followed by the appointment of Special Counsel Robert Mueller to investigate the Russian charges. In April 2019, Mueller admitted there was no evidence of collusion. Conniving by FBI officials and the veil of secrecy that hid their abuses roiled national politics for years. Not one FBI official has spent a single day in jail for the abuses. The Bureau’s charade simply confirms the nearly boundless prerogatives of the nation’s most powerful law enforcement agency.
Absurd secrecy rationales also made mincemeat of Trump’s foreign policy. One of Trump’s biggest failures abroad was his failure to end U.S. involvement in the Syrian civil war. Beginning in 2013, the Obama administration began covertly providing money and weapons to Syrian groups fighting the government of Bashar Assad. The program was a catastrophe from the start: CIA-backed Syrian rebels ended up fighting Pentagon-backed rebels. Much of the U.S. aid ended up in the hands of terrorist groups, some of whom were allied with Al Qaeda. Providing material support to terrorist organizations is a federal crime, except apparently when the weapons are sent by U.S. government agencies.
Appeals court decisions on Syria FOIA requests epitomize how the “rule of law” now amounts to little more than political appointees reciting empty phrases to rubberstamp federal coverups. Too many federal judges behave on par with the bureaucratic dregs who supervise traffic courts which uphold every speeding ticket that police ever issue.
When Trump tried to end the Syria weapons program, a Washington Post article portrayed his reversal in apocalyptic terms. Trump responded with an angry tweet: “The Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad.” That disclosure spurred a Freedom of Information Act (FOIA) request by the New York Times for CIA records on payments to Syrian rebel groups. The CIA denied the request and the case ended up in court.
CIA officer Antoinette Shiner warned the court that forcing the CIA to admit that it possessed any records of aiding Syrian rebels would “confirm the existence and the focus of sensitive Agency activity that is by definition kept hidden to protect U.S. government policy objectives.” Of course, “kept hidden” doesn’t apply to CIA “not for attribution” bragging to reporters. Washington Post columnist David Ignatius proudly cited an estimate from a “knowledgeable official” that “CIA-backed fighters may have killed or wounded 100,000 Syrian soldiers and their allies over the past four years.”
Federal judges, unlike Syrian civilians slaughtered by U.S.-funded terrorist groups, had the luxury of pretending the program doesn’t exist. In a decision last July, the federal appeals court of the Second Circuit stressed that affidavits from CIA officials are “accorded a presumption of good faith” and stressed “the appropriate deference owed” to the CIA. The judges omitted quoting former CIA chief Mike Pompeo’s description of his agency’s modus operandi: “We lied, we cheated, we stole. It’s like we had entire training courses.”
Since Trump’s tweet did not specifically state that the program he was seeking to terminate actually existed, the judges entitled the CIA to pretend it was still top secret. The judges concluded with another kowtow, stressing that they were “mindful of the requisite deference courts traditionally owe to the executive in the area of classification.” Judge Robert Katzmann dissented, declaring that the court’s decision put its “imprimatur to a fiction of deniability that no reasonable person would regard as plausible.”
On February 9, another federal appeals court shot down a FOIA request from BuzzFeed journalist Jason Leopold who had sought the same records based on Trump’s tweet. Leopold succeeded at the district court level. Federal Judge Rudolph Contreras ruled in favor of disclosure last November, declaring that “it seems wildly unlikely that, in the eight and a half years since the Syrian civil war began, the Central Intelligence Agency has done no intelligence-gathering that produced a single record even pertaining to payments [to] Syrian rebels.”
But the federal appeals court for the District of Columbia rushed to the rescue of the CIA’s prerogative to deceive the world, or at least American citizens. The court unanimously overturned the earlier ruling, declaring, “Did President Trump’s tweet officially acknowledge the existence of a program? Perhaps. Or perhaps not. And therein lies a problem.” The judges proffered no evidence that Trump had tweeted about a program that didn’t exist. The judges reached into an “Alice in Wonderland” bag of legal tricks and plucked out this pretext: “Even if the President’s tweet revealed some program, it did not reveal the existence of Agency records about that alleged program.” Since Trump failed to specify the exact room number where the records were located at CIA headquarters, the judges entitled the CIA to pretend the records don’t exist.
In his final months in office, Trump repeatedly promised massive declassification which never came. Was the president stymied by individuals he had unwisely appointed such as CIA chief Gina Haspel and FBI chief Christopher Wray? Or was this simply another series of empty Twitter eruptions which Trump failed to follow up? Instead, his legacy is another grim reminder of how government secrecy can determine political history. There is no reason to expect any sunshine on federal atrocities from the Biden administration. Biden’s Justice Department is continuing the Trump administration’s effort to extradite Julian Assange, whom Biden denounced in 2010 as a “high-tech terrorist.” Will the Biden administration ruthlessly prosecute federal whistleblowers like the Obama administration did?
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.” Unfortunately, Americans have lost that right. America is becoming an impunity regime, in which government officials pay no price for their abuses. This is not a partisan issue: Republicans and Democrats have partnered for decades to keep Americans in the dark. Vast secrecy means that the political system, regardless of its external forms, is based on blind trust in officialdom. Pervasive secrecy defines down self-government: people merely select their Supreme Deceivers.