Today (and every day) the practice of keeping the government’s activities out of the ken of the people it supposedly serves is a disease without cure.
Right now we are dealing with secrecy surrounding the Mueller report; a 2016 application for a FISA warrant by the Department of Justice; the denial of security clearances to certain White House personnel that the President reversed; and the secrets stolen by PFC Manning and distributed by WikiLeaks and its arrested founder Julian Assange, to name just a few.
I learned a lot about government secrecy when President Clinton appointed me, Richard Ben-Veniste and Elizabeth Holtzman as public members of an inter-agency working group under legislation mandating the declassification of then-secret documents pertaining to Nazi and Imperial Japanese World War 2 war crimes. We declassified about eight million pages that were still classified after over sixty years.
After the war, government agencies, chiefly the CIA, used Nazi war criminals to find out about the Soviet Union in pursuance of the cold war. To save their skins these criminals and murderers–many in the SS, denominated a “criminal organization” at Nuremberg– sold the government a bill of goods that their knowledge of Soviet secrets gained as Third Reich killers would make us winners in that conflict.
The use of these criminals was opposed by some of the most gifted CIA employees, including James Jesus Angleton, who wrote a passionate memo decrying the immorality and uselessness of the scum our nation employed to try to best the Russians. Prying these secrets out of the CIA was not easy but we did it.
The legislation creating our group had broad bipartisan support. And we were continued in office by President George W. Bush.
How does a document become “classified?” There are rules, but essentially classification is decided by low level federal employees. And once classified, classified forever. Similar to what the ad for the “roach motel” says of the bugs: with classification, you check in, but you don’t check out.
Members of both parties have sought to attack the government secrecy virus. President Clinton signed an executive order declassifying everything after twenty-five years and earlier in some cases. A new executive order covering much the same ground was issued by President Obama. These efforts were warmly supported by Republicans. And our dispute with CIA to force declassification of Nazi war crimes records was materially assisted through the efforts of then- Republican Senator (now Governor) Mike DeWine of Ohio.
Let’s examine some of the secrecy we face today.
The Mueller Report. We can’t see all of that because Attorney General Barr wants to withhold and redact revelation of intelligence “sources and methods” (a pre-inked stamp with that phrase is used to deny many Freedom of Information Act requests); information about ongoing investigations; and information affecting the privacy of “peripheral” folks (you can drive a Mack truck though that one). And we can’t see grand jury material that Barr will not ask a Court to release.
Barr wants to “release” numerous pages of toner. The report of this lengthy and vital investigation belongs to the American people and should not be hidden through the use of broad categories of quibbles.
The 2016 FISA application. When the government wants to wiretap or otherwise covertly surveil someone it applies to a United States District Judge who has been designated a “FISA judge” by the Chief Justice. These judges are hearing one side only. (If I were a federal judge, I would not accept such an appointment because under Article Three of the Constitution I am charged with exercising the judicial power of the United States in cases and controversies and not with what FISA judges do.) The applications and decisions are secret.
In September 2018, Trump ordered the declassification of the application but four days later reversed himself.
The application should be made public.
The security clearance imbroglio. Around twenty-five White House employees applied for security clearances that would allow them to see all the (needlessly, in most cases) “secret” stuff but were turned down by a faceless bureaucrat who gave no reasons and cannot be interrogated on the denial of these clearances. The White House reversed the low-level decisions.
It is plainly unfair to be denied the ability to do the White House job that you have accepted simply because someone declines to grant a security clearance for no reason or for any reason. What kind of due process is that?
Significantly, most security clearances are sought and obtained by persons in defense industries, far more than for government employees. Why should an employee lose a job at a defense contractor just because a nameless operative makes a secret decision to deny a security clearance?
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In sum, government secrecy is an attack on our freedom to know what the government is doing. Sure we want to protect information on troop movements; on the safety of public officials; on intelligence related to national security; on safeguarding nuclear materials; and on cryptology that protects us. But that’s a far cry from the pervasive secrecy we are now experiencing.