How State Secrecy Protects Government Agencies From Embarrassment, Then And Now

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.

Originally posted on the ACLU of Massachusetts' PrivacySOS blog.

Add a comment (4)
Read the Terms of Use

Benjy

http://youtu.be/_bAMpQId5QI
this song covers every detail to derail everything

Anonymous

I don't think you guys really have a right to speak of this issue anymore because you appear to think that NOTHING Edward Snowden does would cause any trouble, that he was born as Mr. Perfect and nothing can mar it - like being human. It's like you grew him into a plaster saint overnight just because he did one little thing you liked - as if he no longer qualifies as a person because he can make no mistakes from this point onward.
Real people do both good and bad things, and there ARE situations where telling ALL would be all stupid - and I can give you a perfect example of it.

In a case where a patient is in a trauma 1, going to die within 15 minutes if you don't start medical intervention on her, it might be considered "transparent" to tell the person and her family that her chances of surviving the trauma are slim to nonexistent.
However, doing so would upset the family when they're alREADY distressed and would be even worse for the patient b/c she would stop fighting for the little bit of life she's clinging to and, and in the case of a trauma 1 that would be like signing the death certificate before she's even gone.
It's been scientifically proven that people who think they're going to die in a trauma usually WILL die, especially if they stop trying to live, and that those who try to fight for their lives do better than those who give up the battle. They don't know why this is, but it's definitely true.

But I guess Edward Snowden would have told the patient "You're probably going to die, so stop fighting for your life" in order that he would be seen as 'transparent' and everyone's prodigal son?

If you're honest every second of every day it doesn't always work out for the best. Like the time someone honestly remembered the license plate number of the guy who drove the getaway car in a bank heist and that someone mysteriously disappeared, never to be found again.
And Edward Snowden is the last person *I* would think of as truly honest. He committed every deceit and manipulation he HAD to in order to get what he wanted.
Anyway, too much of ANYthing - good OR bad - isn't exactly a healthy way to run your life.
Besides that, I'm really disgusted and ticked off at the fact that people are treating him like he grew into a plaster saint overnight. He no longer has human status. At least I can't find the quality in any of the things I read about him. He's either perfectly good or perfectly bad and NObody - unless you're Osama bin Laden can be only bad or only good.
I'm at the point where even if I agreed with a PORTION of what Snowden did I'd no longer say it, because I'm so sick of hearing about how "heroic" people think he is. I'm just tired of it.

The people who returned from the Vietnam war not only got a cold reception but nobody ever thought they were heroes.
Someone who's a family friend of ours is a Veteran of that war, and people online still call him really ugly names, so that it appears he's still not considered a hero even 4 decades later. They called him one of those names today; he handled it better than I would but it proves my point about how long it's been happening.
I not only think he IS worthy of praise but I can say he's the only person who's ever been able to help me with PTSD, which I got after a bank robbery in which the lead robber shot me.
They've been making me go to incompetent therapists for almost 20 years now; people who may enjoy their work but they have no clue what it feels like to have PTSD.
Richard, the family friend in question, made the reaction disappear within 15 minutes of talking to me and so far it's never made a reappearance.
If anyone had thought - or cared - to ask me I'd have told them I prefer getting over a bad memory within minutes as opposed to still having it 10 years after I started seeing this therapist. Nothing he's said in all that time helped me as much as Richard did in 15 minutes.

Note: Reference to plaster saint is an excerpt from Rudyard Kipling's poem Tommy

...We ain't no thin red heroes, no we ain't no blackguards too
but single men in barracks most remarkable like you
and if sometimes our conduck isn't all your fancy paints
why single men in barracks don't grow into plaster saints."

I'd be a lot happier with people thinking Edward Snowden's a hero if they at least thought Richard and every other Vietnam Veteran were ALSO heroes for a different reason.
Not still out in cyberspace calling Vietnam Veterans baby killers.

I think Vietnam Veterans are heroes at LEAST as much as you guys think Snowden is. Except I hope I'd never put them on a pedestal. I don't want to do THAT with ANYone. That way lies disappointment.
I found that out the really hard way.

Anonymous

Elkins v FAA, 8:12-CV-2009 US District Court, Tampa
Elkins v FAA, 1:14-CV-00476 US District Court, District of Columbia
Improper withholding of records, not compiled for law enforcement purposes
Blocking records that document DOJ illegal activity, unwarranted surveillance
Purposely convoluting a FOIA request, #2013-002230ES
Acknowledging that the plaintiff was in fact under surveillance by the DEA when Federal prosecutor Douglas Malloy denied allegations under oath in official proceeding. South Florida, a corrupt haven for out of control law enforcement!!!!!

from Richard, V...

Sometimes, National Security DOES have a good reason to withhold information, especially if telling it will harm or even get people killed.
When I was in the war, I worked as an Intelligence Officer. My task was to locate useful information about where the enemy was and what they were doing, then take the information back to HHQ (superior officers) so they could create a battle plan using the discovered information to devise it.
If just anybody got hold of the information AFTER a battle plan was drawn up, the soldiers who were to participate in the plan would be compromised and in danger, and that happened at least twice during my time there, and once when I wasn't. Although we believe the informant was a "supposed ally from SVA (South Vietnames Army) someone on whose behalf we were sent to the war to help win it. IOW a person with whom we were supposed to be allies against the NVA (North Vietnamese Army.)
Three people died in an ambush that the enemy had set up in anticipation of our next move, because someone had alerted them to the news.
Doing something like that, giving information to the enemy so that soldiers die and are wounded is absolutely unconscionable. There's positively no good reason for being transparent in that situation and in fact the transparency got people killed and injured.
Nobody will ever convince me that information needs to be shared at any and all costs, even the lives of people who had barely begun to live before they were cut down by enemy fire.
None of our dead that day were more than 21.

Sign Up for Breaking News