Often when the government wants to keep something
secret, it claims that transparency would endanger national security. We’ve
been hearing a lot of this lately with regards to Edward Snowden. The leaks
have caused “grave harm” to national security and even US foreign policy,
Snowden’s critics repeat over and over again.The trouble is, whenever these
critics are pressed to explain how Snowden's disclosures have harmed the public
interest, they usually do one of two tricky things:
1.
They say that the harm cannot necessarily be
measured, but is likely to derive from transparency, and that even the
possibility of harm is serious enough to outweigh the positive aspects of
sunlight in a democratic society. For example, last week ODNI general counsel
Bob Litt told
a New York audience that national security leakers are like drunk drivers, who
may or may not kill anyone, but endanger the public either way.
2.
They say that these “grave harms” are real and
true and demonstrable, but only people with proper security clearance can hear
about them.
The first amounts to “it might do something bad but
we have no evidence” and the second amounts to “it has done something very bad
but I cannot prove this to you because state secrets.”
We have plenty of historical evidence that in the
vast majority of circumstances, national security leaks don’t harm the public
interest or national security at all, contrary to what representatives of the
security state say.
When Daniel Ellsberg leaked the Pentagon Papers, the
US government claimed that publication of the documents would gravely endanger
national security. Officials tried to stop the New York Times from printing
them, citing grave harm. Decades later, pretty much everyone—including
Snowden’s fiercest critics—acknowledges that while the papers revealed
significant mendacity on the part of the US government, no real security harm
came from their publication. In fact, the nation’s security was arguably better
off for the transparency.
The government tried to keep secret documents
pertaining to COINTELPRO using the same dishonest excuse. In 1972, NBC news
reporter Carl Stern saw the phrase “COINTELPRO—New Left” emblazoned on an FBI
file activists had stolen from a Media, Pennsylvania satellite office the prior
year. He filed a public records request to the deputy attorney general, seeking
information about COINTELPRO, a mysterious codename no one he spoke with could
define or explain. The Department of Justice denied Stern’s request, stating
that, as Betty Medsger writes in her book The Burglary, COINTELPRO documents
were “exempt from disclosure.” Information about the program must “be kept
secret in the interest of the national defense and foreign policy,” according
to Justice.
Stern appealed to then FBI director L. Patrick Gray.
Gray also refused to provide the documents, writing, "This matter involved
a highly sensitive operation. It has now been discontinued, but I do not feel
that details concerning it should be released since such disclosure would
definitely be harmful to the Bureau’s operations and to the national security.”
In fact, as Medsger reports, the operations were still in effect.
After one more denial—this time from the attorney
general himself—Stern and the Press Information Center filed suit against the
Department of Justice. It was the first time a journalist had ever sued the
federal government to obtain access to documents under FOIA. Medsger describes
what happened next:
Department of Justice lawyers claimed the judge could
have no say in the matter because, they said, the federal judiciary lacked
jurisdiction over intelligence matters. U.S. district judge Barrington Parker
thought otherwise and on July 24, 1973, he ordered the documents be released to
him for private inspection. When department officials submitted the files to
Judge Parker, it was the first time COINTELPRO files had been seen by anyone
outside the FBI. On September 25, 1973, Judge Parker ordered Justice officials
to release the files to Stern. At first, the department appealed the order, but
acting attorney general Robert Bork withdrew the appeal and turned four pages
of COINTELPRO documents over to Stern on December 6, 1973.
These documents contained explosive revelations about
Hoover’s FBI’s attack on free speech and association. Stern’s report described
how “in a May 1968 memorandum Hoover had informed officials at FBI headquarters
in Washington and in key field offices that he had opened COINTELPRO-New Left
to “expose, disrupt and otherwise neutralize” the New Left movement.”
Activists, Hoover wrote, “must not only be contained
but must be neutralized.” And secrecy was key. “The nature of this new endeavor
is such that under no circumstances should the existence of the program be made
known outside the bureau and appropriate within-office security should be
afforded this sensitive operation.”
Did the release of the COINTELPRO documents endanger
national security and foreign policy, as the Department of Justice claimed when
it tried to prevent their release? Of course not. Straight out of Hoover’s
playbook, officials were trying to keep these records secret to protect the FBI
from embarrassment and the political scrutiny that would surely come when
Americans realized what the nation's top law enforcement agency was really
doing.
Only recently, we learned that an FBI agent placed
Rahinah Ibrahim on the No Fly List because of a clerical error. The government invoked
secrecy concerns, including state secrets, and argued Ibrahim's case couldn't
be tried in court. After eight years of litigation leading to a 5-day trial,
the government conceded and the judge found Ibrahim was not a national security
threat.
Today, FBI headquarters in Washington bears the name
of an obsessive tyrant who went to great lengths to sabotage democracy, and
would stop at nothing to keep any and all evidence of that sabotage secret from
the public he purported to serve. Some things do not change. When you hear
officials and other defenders of state secrecy decry transparency as gravely
threatening to national security, remember Carl Stern and Rahinah Ibrahim.
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