Some secrecy is necessary, but too often secrecy is used to hide illegality, embarrassment or conduct departing from American values. Contrary to conventional wisdom, however, these reasons do not explain by themselves why America’s mountains of classified documents grow ever higher. Human nature and bureaucratic incentives favor secrecy over openness. Secrecy is seductive. Beyond the timeless link between secrecy and power, secrecy limits challenges and risky questions. It fosters illusions of grandeur. Fear, awe, jealousy and lethargy all help cement a culture of secrecy.
Secrecy spawns more secrecy. The more information increases and secrets proliferate, the more professionals are tempted to use secrecy to get noticed. If you want your individual snowflake report to be read and not buried by avalanches of paper or blizzards of bytes, you better be sure it is classified and, indeed, escalate its classification to top secret or beyond. Secrecy’s seduction often blinds those with access to secrets to other valuable sources. Even though information from open sources (newspapers, magazines, TV, radio and the Internet) is often unique and valuable, many recipients of intelligence have no interest in such information, only wanting super-secret material from spies and intercepts. Moreover, secret is often conflated with true.
Escalating secrecy also adds to institutional prestige, explaining, for example, why CIA leaders fight fiercely to keep the President’s Daily Brief (PDB) super-secret. Prior to 9/11, the Bush Administration reduced PDB circulation to just six people, excluding the Attorney General, FBI Director, and White House counterterrorism chief. During the summer of 2001, these super-secret submissions to the White House contained many dire al Qaeda predictions that something “very, very, very big” was about to happen; “spectacular”; resulting in “numerous casualties.” Had the White House publically disclosed the gist of the top-secret threat warnings, it is likely lower-level government officials would have acted on information like the disturbing number of individuals of investigative interest attending aviation schools. Disclosure could also have led to more imaginative thinking about possible terrorist actions. White House disclosure of the warnings might well have averted 9/11.
People who have been following the cycle of violence after 9/11 -- in particular the human rights and rule of law violations that occurred in the detention center in Guantanamo Bay, Cuba -- are aware of the solitary confinement and isolation abuses that were endemic to Guantanamo. Isolation and its pernicious effects, however, did not only exist in Guantanamo. In the system of injustice that speaks to the decade following 9/11, high-ranking officials in the Bush administration who did not step firmly in line with the Bush/Cheney policy of torture and disregard of the rule of law were also isolated.
Certainly the isolation endured by the high-ranking government and military officials was not of the mental ruination, mind-numbing and sensory deprivation kind that the detainees suffered at the naval base detention center. Nevertheless, high-ranking officials in the Bush administration who preserved their integrity and adherence to the rule of law – and thereby stood in conflict with Bush administration policy – were isolated and marginalized from policy-making decisions.
Apparently consumed by what Rolling Stone’s Matt Taibbi calls the “most meaningless national election we’ve ever had,” the recent enactment of the National Defense Authorization Act, a sweeping law that some constitutional experts argue poses grave dangers to civil liberties, has garnered limited attention from the media.
In a three-part series for the People’s Blog for the Constitution, Shahid Buttar, in a Q-and-A format, explains why the NDAA, which President Obama signed at the end of December, deserves far more attention for its possible detrimental effects on civil liberties. (The bill does more than authorize billions in military spending, $662 billion to be exact. It also, as Buttar explains, provides the executive branch with potentially far-reaching powers to detain Americans suspected of terrorism-related activities. In signing the bill, Obama maintained he would never authorize indefinite military detention of Americans citizens, and that he would not feel compelled to try all suspects in military tribunals, as the law authorizes. Buttar’s exhaustive series, however, explains why such assurances are wobbly.)
Buttar, executive director of the Bill of Rights Defense Committee, in his first blog post, “The NDAA: Another assault in the dead of night,” blasts Congress for supporting, with passage of the NDAA, “indefinite military detention of even US citizens.” The version that Obama signed into law contains provisions that only appear to limit the law’s reach, Buttar writes.
“Apologists for the NDAA,” Buttar states, “forget that laws remain fixed until changed, beyond the terms of particular officials who write them. And the ambiguity created by the law could be construed by future Presidents (or their advisors) to confer dramatic, sweeping powers to detain US citizens without a right to trial or Due Process. In the wrong hands, it could be used as a powerful tool to suppress dissent, with predictably catastrophic consequences.”
By Samuel Morison, a criminal defense attorney in Washington, D.C., and a former staff attorney at the Office of the Pardon Attorney.
For most of this country’s history, the practice of executive clemency has quietly functioned as an ancillary feature of the criminal justice system, without attracting much attention. The purpose of the pardon power, as the Founders envisioned it, was to fill the inevitable gaps in the just and humane infliction of punishment. In addition to being a failsafe to correct injustices that escaped judicial scrutiny, executive clemency was conceived as an equitable vehicle for bestowing legal “forgiveness” in appropriate cases. As the Supreme Court observed in Ex Parte Grossman, “[t]he administration of justice … is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt.” Hence, “[e]xecutive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law.”
Beginning in the 1970’s, however, under the influence of the “new retributivism,” the prevailing rehabilitative paradigm began to collapse, along with the traditional practices of discretionary sentencing and parole. In its place, we have witnessed the ascendance of determinate sentencing schemes, including strict mandatory minimum penalties for a broad array of offenses, most notably the distribution of illegal drugs. However well intentioned, the rhetoric of retribution quickly degenerated into a crass endorsement of punitive incapacitation for its own sake, with little regard for what any particular offender actually deserves. The result has been a burgeoning federal prison population of more than 200,000, coupled with thousands more ex-felons who labor under the burden of lifetime collateral disabilities.
The Obama administration’s striking success at bringing down Osama bin Laden has been sullied by the debate over torture and whether it helped lead to his demise. But American University law school professor William Yeomans writes in Politico that President Obama “has nobody to blame but himself,” for the diversion.
Yeomans continues that Obama’s failure to “investigate and hold to account those who tortured,” has left the door open for former Bush administration officials to now claim that torture was effective and justified.
Obama’s refusal to follow through on our nation’s commitment to the rule of law – both domestic and international – allowed the rehabilitation of the Bush administration’s Office of Legal Counsel attorneys, who wrote the memos permitting torture, and the lawless White House officials, who cast aside domestic law, the Convention Against Torture, the Geneva Conventions and a tradition dating to George Washington of humane treatment of detainees by Americans during the conflict.