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Secrecy and Security


Unfortunately, good arguments alone have done little to overturn
habits of secrecy within the security establishment. Openness may
help to avoid human rights abuses; it may protect political partic-
ipation rights; it may even help to improve national security itself.
All this may be true, but the security establishment nonetheless has
remained (to use the military™s own jargon) a hardened target “ a sec-
tor that has largely succeeded in resisting the trend toward greater
openness in government.
There are several reasons for this. One is the ease with which
bureaucratic self-interest can be cloaked in the mantle of the pub-
lic interest. In moments of great insecurity “ when the public fears
signi¬cant threats to public order “ it is also least likely to challenge
claims about the need to keep secrets. We saw this in the months
following the September 2001 attacks, when the public™s willingness
to defer to government leaders soared to levels not seen in the past
thirty years and opinion polls showed that a large majority of Ameri-
cans were prepared to weaken civil rights to ensure public security.113
Furthermore, the basic equation that is essential to the maintenance
of the security establishment as an enclave of secrecy “ the presumed
equivalence of security and secrecy “ is deeply embedded in popular
culture. (“It™s classi¬ed,” says Maverick in the movie Top Gun. “I could
tell you, but then I would have to kill you.”)
The bureaucratic interest in keeping secrets is also very strong.
Rules on access to information perform the function of preserving
hierarchy within public bureaucracies. If lower strata of workers
within public agencies have better access to information, they are
more likely to challenge their superiors, either directly or by mobiliz-
ing constituencies outside the bureaucracy to challenge the agency
leadership. Liberalization of access rules also challenges hierarchy in
a less tangible way, by undermining status distinctions within pub-
lic bureaucracies. Within the security establishment, rank is signaled
by security clearance: To put it roughly, who you are (in terms of
social status) depends on what you know. (Access to “the inside dope,”
Daniel Ellsberg recalls in a memoir of his early years in the Defense
Department, “made you feel important.”114 ) An attempt to remove
restrictions on access to information is, therefore, a challenge to
social hierarchy within public agencies.
The system is also deeply entrenched in bureaucratic routine. The
work life of the vast federal bureaucracy consists, in large part, in

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the handling of information; a change in rules about information
management “ such as rules about the making and keeping of secrets “
can have fundamental and broad consequences. The current system
of secret keeping has had more than a half-century to embed itself in
bureaucratic practice. In addition there are other, less easily observed
constraints on reform, as I will note in Chapter 6: the growing web of
intergovernmental agreements that compel agencies in the American
government “ and other governments as well “ to retain traditional
methods of controlling sensitive information.




50
3
REGIME CHANGE




On April 22, 2004, U.S. Defense Secretary Donald Rumsfeld gave a
luncheon address to the annual convention of the American Soci-
ety of Newspaper Editors, meeting at the J. W. Marriott Hotel on
Washington™s Pennsylvania Avenue. Fifty years earlier, it had been the
ASNE that ¬rst lobbied for adoption of a federal Freedom of Infor-
mation Act, and so it was perhaps natural for Rumsfeld to begin with
an encomium on the virtues of open government:

Our republic was founded on the notion that an unchecked gov-
ernment is a major obstacle to human freedom and to progress,
and that our leaders need to be challenged, internally through the
complex constitutional system of checks and balances, and exter-
nally by a free and energetic press. This is a notion I™ve supported
throughout my adult life. As a matter of fact, as a young member
of Congress back in the 1960s, still in my 30s, I was a co-sponsor
of the Freedom of Information Act. Now we all recognize that that
Act causes government of¬cials occasional pain, but in my view, it
has been a valuable Act in helping to get the facts to the American
people. . . . Our great political system needs information to be
self-correcting. While excesses and imbalances will inevitably
exist for a time, fortunately they tend not to last. Ultimately truth
prevails.1

The depth of Secretary Rumsfeld™s commitment to transparency
was, at that moment, open to question. Ten days before Rumsfeld™s
ASNE speech, Defense Department of¬cials had learned that the CBS
news program 60 Minutes II was about to broadcast a story on abuse
of Iraqi detainees at Abu Ghraib prison, west of Baghdad. The CBS


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story, based on a leaked copy of an internal report by Major General
Antonio Taguba, was damning. While Rumsfeld and other senior of¬-
cials boasted publicly that the torture of Iraqi citizens had ended with
the fall of Saddam Hussein,2 Taguba had collected “extremely graphic
photographic evidence . . . [of] sadistic, blatant, and wanton criminal
abuses . . . intentionally perpetrated” by American troops.3
Although Taguba™s report, completed in early March, had leaked
to CBS and other journalists, the Defense Department did its best to
keep the lid on the story. The report had been classi¬ed as SECRET “
a decision that was later challenged as an abuse of classi¬cation rules
but restricted its circulation and would have blocked disclosure under
the Freedom of Information Act.4 The Chairman of the Joint Chiefs
of Staff, General Richard Myers, called CBS news anchor Dan Rather
on April 14, and again on April 21, twice persuading him to delay the
network™s report on Abu Ghraib.5
On April 28, CBS refused to wait any longer. But Rumsfeld said
nothing to members of Congress about the report in a brie¬ng on
Capitol Hill only hours before the CBS broadcast.6 Interviewed by
MSNBC™s Chris Matthews the next evening, Rumsfeld refused to dis-
cuss Taguba™s investigation, denying that he knew anything more than
what CBS had reported:

MATTHEWS: You™ve seen these photos from CBS of the treat-
ment of some of the prisoners over there. RUMSFELD: Yes, I
have. . . . MATTHEWS: You™re a good man, but what is your reac-
tion to “ when you see that? Are these bad apples, or is there
something in the pressure on these troops over there, the heat?
What is it that brings to “ these guys are being paraded around,
made to do all these things naked and these weird kind of things to
humiliate themselves. What™s that about? RUMSFELD: I watched
the program, is all I have seen on it.7

“He did display a lot of candor today,” said Matthews after the inter-
view, thinking that he knew enough to make that judgment.
As controversy grew in the following days, Rumsfeld maintained
his silence, refusing to meet with reporters on the subject. Rumsfeld™s
press chief, Lawrence Di Rita, also declined to “talk about the speci¬cs
of a report which (a), remains classi¬ed, and (b), remains under
review.”8 When portions of the Taguba report were posted on the
internet, some in the Defense Department still fought the tide. An

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Regime Change


internal e-mail from security staff warned:

Fox News and other media outlets are distributing the [Taguba]
report. . . . Someone has given the news media classi¬ed informa-
tion and they are distributing it. . . . This leakage will be investi-
gated for criminal prosecution. If you don™t have the document
and have never had legitimate access, please do not complicate the
investigative processes by seeking information. . . . THE INFOR-
MATION CONTAINED IN THIS REPORT IS CLASSIFIED; DO
NOT GO TO FOX NEWS TO READ OR OBTAIN A COPY.9

The e-mail was promptly leaked to Time magazine. Within days,
efforts to contain the scandal collapsed. In The New Yorker, journalist
Seymour Hersh published a second story on Abu Ghraib, based not
only on his own leaked copy of the Taguba report, but on military
hearing transcripts and soldiers™ correspondence as well.10 The for-
mer commander of Abu Ghraib, Brigadier General Janis Karpinski,
appeared on ABC™s Good Morning America, Nightline, and CNN™s
American Morning to rebut claims that she bore much of the responsi-
bility for the abuses. The CIA acknowledged that its Inspector General
was also investigating misconduct by its of¬cers at Abu Ghraib,11 and
the Army conceded that it had begun over thirty criminal investiga-
tions into suspicious deaths and other abuses in Iraq and Afghanistan,
¬nding at least two criminal homicides.12
Finally, a week after the 60 Minutes II broadcast, Rumsfeld held
a news conference to discuss the controversy, and two days later he
was called before House and Senate committees. His frustration was
palpable. “The system works,” Rumsfeld told reporters on May 4. “I
understand the appetite of people for instant information and instant
conclusions. These things are complicated. They take some time.”13
The controversy, he almost suggested to legislators on May 6, was
fueled by an excess of openness: “Someone took that secret report
and gave it to the press” before senior of¬cials had the chance to
properly consider it. The problem, he told senators, was this:

We™re functioning in a “ with peacetime restraints, with legal
requirements in a war-time situation, in the information age,
where people are running around with digital cameras and tak-
ing these unbelievable photographs and then passing them off,
against the law, to the media, to our surprise, when they had not
even arrived in the Pentagon.14

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The controversy over the Taguba report, which metastasized in the
following weeks into a broader scandal about use of torture as a tool
in the war on terror, perfectly illustrated the Bush administration™s
attitude toward open government. As the etiquette of public discourse
required, the administration expressed its general commitment to the
principle of openness. In practice, however, it did what it could to
restrict access to government records.
The Bush administration did this because it feared the conse-
quence of excessive openness “ the corrosion of its ability to maintain
a decent degree of control over the business of government. The vor-
tex into which the Bush administration had been drawn after the
60 Minutes II report could be regarded, by advocates of openness, as
the high price that is paid for excessive secretiveness. But for peo-
ple like Rumsfeld, concerned mainly with the executive™s capacity
to govern, the following week might well have illustrated the basic
problem that preoccupied their days: the irrationality and chaos of a
political system that is increasingly dominated by twenty-four-hour
news, a fractured and fractious Congress, and a burgeoning number
of special interest groups. Too much openness simply accelerated the
inherent entropic tendencies of American politics.


Overload
If nothing else, Rumsfeld™s attitude had the virtue of long consis-
tency. The drive for greater secrecy was not precipitated by the
demands of the war on terror. Concern about the executive™s capacity
to govern had preoccupied Rumsfeld and his allies for three decades,
always constraining their enthusiasm for greater governmental
openness.
Sometimes history was bent to avoid a direct acknowledgement
of this fact. It was true, as Rumsfeld told the ASNE convention, that
as a young Republican congressman he had been a co-sponsor of the
Freedom of Information Act adopted by Congress in 1966. At the time
he had even expressed sentiments about the virtues of open govern-
ment that advocates of transparency would later deploy in a futile
effort to embarrass him as Defense secretary. “Disclosure of govern-
ment information is particularly important today,” said Rumsfeld in
1966, “because government is becoming involved in more and more


54
Regime Change


aspects of every citizen™s personal and business life, and so access to
information about how government is exercising its trust becomes
increasingly important.”15
Rumsfeld may well have believed this. However, the law that he
co-sponsored “ the 1966 FOIA “ was only a shadow of the contempo-
rary Freedom of Information Act. As Supreme Court Justice Potter
Stewart said in a 1973 case interpreting the law, the 1966 FOIA pro-
vided no method of challenging a decision to withhold information
that had been classi¬ed in the name of national security “ no mat-
ter how “cynical, myopic, or even corrupt that decision might have
been.”16 The 1966 law provided similarly broad protection for the
FBI™s investigative ¬les.17 The sort of openness that Rumsfeld had
praised in 1966 was one that still allowed the President and his sub-
ordinates substantial control over the out¬‚ow of information.
Congress attempted to limit this control in the fall of 1974,
after the resignation of Richard Nixon. It adopted amendments that
allowed the courts to determine whether the authority to classify
information in the name of national security had been properly
exercised, and that required the FBI and other agencies to show
that disclosure of investigative ¬les would actually compromise its
law enforcement activities. By then, Rumsfeld was Chief of Staff
to President Gerald Ford. (Rumsfeld™s deputy was Dick Cheney.) In
November 1974, Ford vetoed Congress™s amendments to the law,
claiming that they would compromise national security and law
enforcement.18 Congress, angered by the Watergate scandal, voted
to override Ford™s veto. (Justice Antonin Scalia, then head of the
Justice Department™s Of¬ce of Legal Counsel, also supported a veto of
the FOIA amendments, and encouraged intelligence of¬cials to make
their opposition known to President Ford.19 The 1966 FOIA had been
“a relatively toothless beast,” Scalia said later, but the 1974 amend-
ments were a “disaster.”20 )
Today, the Nixon years are remembered as a time in which the
American public realized the dangers inherent in an excessive con-
centration of executive authority. Nixon had put the capstone on an

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