. 6
( 53 .)


the evidence, they could not be thorough. Systematic abuses required
bureaucratic action, which in turn produced a documentary record
of the procedures employed by security services. The ¬les gave con-
crete proof of crimes that the commission itself conceded were other-
wise hard to believe.11 The Brazilian military also attempted to avoid
accountability for abuses, but were undone by of¬cial ¬les. In 1985
the Catholic Church™s Archdiocese in Sao Paolo published a report “
also titled Never Again “ that documented the habitual use of tor-
ture against thousands of political dissidents over two decades. The

Secrecy and Security

Archdiocese relied on documents from military court proceedings
that had been secretly photocopied by lawyers associated with the
In 1989, the Chilean junta led by General Augusto Pinochet yielded
power following elections to a civilian President, Patricio Aylwin, who
created a commission based on the Argentine model, but with sig-
ni¬cant limitations: The commission could not investigate abuses
that did not lead to death or disappearance, and its access to mil-
itary records was restricted. Nevertheless, the commission found
documentary evidence of at least 2,000 deaths.13 Other records also
surfaced to incriminate the Pinochet regime. In Buenos Aires, the
investigative journalist Monica Gonzalez found a cache of ¬les that
´ ´
revealed the Chilean-led effort to coordinate “anti-subversion” activ-
ities by the security services of several military regimes, eventu-
ally known as Operation Condor. In Paraguay, activists uncovered
tons of intelligence documents that laid open Condor™s breadth and
the role of Paraguayan security forces in the torture and execution
of dissidents. It became known as the Archivo del Terror “ the
Archive of Terror.14 (In 2003, Chilean President Ricardo Lagos
appointed a second commission to document abuses under the mili-
tary dictatorship; the commission issued its report in November 2004,
describing the indiscriminate detention and torture of thousands of
Chileans.15 )
Many other Latin American countries marked the transition to
democratic rule with inquiries to reveal the past abuses of security
services.16 After Mexico ended seventy years of rule by the Insti-
tutional Revolutionary Party in 2000, the government of President
Vicente Fox appointed a special prosecutor to investigate hundreds
of cases of “forced disappearances” by security services that had been
documented by the National Human Rights Commission. The gov-
ernment also opened 60,000 ¬les that detailed an extensive spying
and disinformation campaign against opponents of the state from
the 1960s to the 1980s. The ¬les also contain:

. . . records of an even dirtier war, which chronicle the state™s
attempt to eliminate the radical left: army counterinsurgency
plans; cables from Guerrero [state] describing the hunt for gueril-
las, the mass detentions of families of rebel leaders. Reports on
interrogation sessions. Photographs of detainees with visible signs

Blacked Out

of torture. Photographs of dead people . . . [The] records have all
the hallmarks of an ef¬cient intelligence bureaucracy: perfectly
organized, pristine, arranged chronologically.17

Similar experiments with post-transition openness were under-
taken in Africa, most prominently in South Africa after the end of
the apartheid government in 1994.18 Secrecy had been a way of life
under the apartheid regime, bolstered by strict laws that prevented the
release and distribution of information about the activity of security
forces.19 A post-apartheid Truth and Reconciliation Commission was
given the power to compel the release of documents on the suppres-
sion of political dissent, and found many papers that demonstrated
the breadth and intensity of the government™s effort.
But the commission also determined that its investigation had
been thwarted by a concerted effort to destroy incriminating records
in the waning years of the apartheid government. The apartheid state
(the commission concluded in 1998) had sought to impose “a selective
amnesia” on the nation through “a massive deletion of state documen-
tary memory within the security establishment.”20 That the commis-
sion could take this view “ when thousands of victims remained to
testify to the conduct of the security services “ was itself a testament
to the symbolic power of the of¬cial ¬le.
The new attitude of openness was evident in the 1990s in the
United States, where sensitive projects that had been hidden in the
name of national security were laid open for public scrutiny. In 1995,
a special commission reported on a decades-long series of radiation
experiments secretly undertaken by government scientists on unwit-
ting American citizens.21 A 1998 law compelled the declassi¬cation
of ¬les that showed the support secretly given by the CIA and FBI to
former Nazi of¬cials, including suspected war criminals, in the ear-
liest years of the Cold War.22 In 1999 the Clinton administration also
ordered a review of documents that revealed the U.S. government™s
role in the Pinochet coup of 1973, and its knowledge of human rights
abuses by Chilean and other South American security forces.23

The enclave survives
Throughout the Cold War, the security establishments of most
nations “ the national communities of defense, intelligence and

Secrecy and Security

counterintelligence, and internal security agencies “ successfully
resisted demands for increased openness. In authoritarian states, this
secretiveness was justi¬ed under the “doctrine of national security,”
which said that openness and the other democratic virtues would
have to be subordinated in the drive to suppress imminent and sub-
stantial threats to the state.24 Even democratic states had their own,
more benign version of the national security doctrine, which said that
the power to address security threats ought to be concentrated in the
hands of well-meaning but secretive elites. In any case, the effect was
to transform the security establishment into an enclave of secrecy “ a
realm in which the usual logic of transparency (a calculus of the ben-
e¬ts and risks of openness) did not apply. Security was an absolute
trump over any demand for openness.
The two decades that followed Argentina™s 1984 Nunca Mas report
were years of horrible revelation. The walls that had protected many
security establishments from outside scrutiny collapsed, providing
proof of terrible abuses done by military, intelligence, and police
forces. The disclosure of of¬cial ¬les was often justi¬ed as a method
of achieving justice for the victims of security agencies, but it also
constituted a repudiation of the logic that had allowed security estab-
lishments to survive as enclaves of secrecy. The dangers of allowing
security to act as an absolute trump had become too clear.
As a matter of policy, the implication was that security establish-
ments could not be allowed to survive as enclaves of secrecy. Through-
out the 1990s, many human rights advocates asserted a new norm “
“a right to know the truth,” validated in international law, that had
to be weighed against security concerns.25 Many countries emerg-
ing from authoritarian rule attempted to entrench this proposition
by adopting constitutional or statutory provisions that af¬rmed, in
general terms, a right to information. These actions, one observer
suggested, re¬‚ected a “critical transformation” of the terms in which
citizens related to the state, which would limit the potential for abuses
of state power in the future.26
But had there really been a fundamental shift in thinking about
transparency in the security sector? In reality, the security establish-
ment in many nations appeared to be more resilient than expected.
In Argentina, the activities of the national intelligence service, SIDE,
were still broadly de¬ned as state secrets, and SIDE became the
principal force opposing the adoption of a national disclosure law.27

Blacked Out

Brazilian policy makers also resisted adopting a disclosure law,
thereby thwarting public demands for access to the dictatorship-
era archives of its security forces.28 Chile lacked a disclosure law as
well; meanwhile, a statute creating Chile™s new National Intelligence
Agency contained provisions designed to preserve the secrecy of the
information it collected.29 And countries that had adopted disclo-
sure laws took special precautions to protect security organizations.
The Peruvian law adopted in 2002 does not include the armed
forces or national police.30 Similarly, the Ecuadorian law adopted
in 2004 prohibits the disclosure of classi¬ed national security infor-
mation except with the approval of the military-dominated Consejo
de Seguridad Nacional. The law™s adoption was delayed for a year
because of resistance from the country™s Armed Forces.31
Most countries in Central and Eastern Europe also adopted
broader constitutional and legislative guarantees of a right to gov-
ernment documents. But by the late 1990s, the region had also been
affected by a second and contrary trend: the adoption of new state
secrecy laws. (I examine the reasons for this trend in more detail in
Chapter 6.) In 2002, the head of Slovakia™s National Security Of¬ce,
rebutting criticisms of the country™s new state secrecy law, explained:
“The right to access classi¬ed information is not a human right.”32
This was correct, in the narrow sense that there was no irrefutable
right to classi¬ed information “ but it also would not be saying any-
thing at all, as there is no irrefutable right to any kind of information,
even unclassi¬ed. More likely the security of¬cial was resisting pres-
sure to extend the logic of transparency “ the balancing of harms
and bene¬ts from disclosure “ into the security sphere. The Latvian
Supreme Court reached the same conclusion in 2003, insisting, in a
case that challenged the Latvian state secrecy law, that the “human
right to freedom of information” did not include the “right of requir-
ing access to state secrets.”33
In fact, many new disclosure laws include special protections for
security organizations. India™s 2002 law did not apply to nineteen of
the country™s security and intelligence organizations. This, as activists
have noted, created a philosophical contradiction: On the one hand,
the law mandated the immediate disclosure of information when it
concerned the “life and liberty of a person”; on the other, it did not
impose this mandate on the agencies most often accused of violating
civil liberties.34 In 2005, the Indian government amended the law

Secrecy and Security

to accommodate this criticism, providing a limited right to infor-
mation from security and intelligence agencies in cases of alleged
human rights abuses. In 2003, South African intelligence authorities
persuaded the government to delay the full application of the coun-
try™s disclosure law, and lobbied for a permanent exemption from its
requirements. Human rights advocates have complained that security
agencies destroyed or hid records for several years after the transition
to majority rule.35
Even established democracies have proved reluctant to press
transparency in the security sector, as the United Kingdom recently
demonstrated. In 1997, Britain™s newly elected Labour government
published a discussion paper on their plans for the country™s ¬rst Free-
dom of Information Act. Although the paper was widely hailed for its
progressive attitude on openness, its liberality had sharp limits: Sev-
eral key security organizations were totally excluded from the law.36
As added protection, the new law also excludes any information held
by other parts of government that is supplied by these agencies, or
even relates to them. For other parts of the security establishment,
British cabinet ministers are allowed to sign certi¬cates to prevent
independent review bodies from overruling their judgment about
whether national security interests are at stake.37
Other Commonwealth countries take a similar approach. For
example, Australia™s Freedom of Information Act “ one of the oldest
outside the United States “ also excludes key intelligence and coun-
terintelligence services, and gives ministers the power to block courts
from questioning their claim that disclosure of information would
harm national security.38 Governments in New Zealand and Canada
may also issue such certi¬cates. In Western Europe, some countries
simply exclude information from their disclosure laws if it has been
classi¬ed by government of¬cials for national security reasons.39
Even in the United States, the security establishment enjoys a spe-
cial level of protection against demands for openness. The Freedom of
Information Act denies a right of access to information that is prop-
erly classi¬ed. The critical question is whether courts are prepared
to challenge of¬cial decisions about the application of classi¬cation
rules; even though the law was modi¬ed in 1974 to encourage closer
scrutiny, it remains true that courts are very reluctant to challenge
executive branch judgments on the classi¬cation of documents.40
Other programs to declassify documents, while important, affect only

Blacked Out

a small and diminishing proportion of the total stock of classi¬ed
documents. (The government™s 2005 statistics suggest that the pace
at which new classi¬ed information is created is increasing, while
the volume of information being declassi¬ed through special review
programs has declined to its lowest point in a decade.41 ) Despite the
protection already given to national security information under the
Act, four intelligence agencies have also lobbied successfully to have
their “operational ¬les” completely excluded from the law.42
By 2004 it was clear that the lesson drawn from these two decades
of revelation was largely a lesson about history. The proposition that
transparency could be used as a tool for controlling human rights
abuses within the security sector was not carried forward; on the
contrary, security organizations continued to exist in enclaves where
the logic of transparency did not apply. The “right to know the truth”
was a right that applied to collapsed regimes or historical records of
fading relevance; openness served as a tool for achieving “transitional
justice,” to use a phrase widely applied by legal scholars.43 Jon Elster
characterized access to the ¬les of security organizations as one way
of “closing the books” “ an unfortunate turn of phrase, perhaps, as
the dif¬culty lay largely in the fact that the books had never been
open.44 But it conveys the reality: Once accounts were settled, security
organizations began rebuilding the walls of the enclave.

New threats, new secrets
In the United States, the process of rebuilding these walls of secrecy
had begun even before the terror attacks of September 11, 2001. In the
early 1990s, defense and intelligence agencies resisted initiatives to
reform classi¬cation rules and declassify Cold War records, only to be
overruled by the White House and Congress; by the end of the decade,


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( 53 .)