President Nixon went even further, claiming that not only could current members of his staff refuse to appear before congressional committees, including the Ervin panel, but so could past members – an unprecedented expansion of the executive privilege doctrine, which some senators immediately labeled “the doctrine of eternal privilege.” Nixon said, too, that all of his “presidential papers,” which he defined magisterially as “all documents, produced or received by the President or any member of the White House staff in connection with his official duties,” were immune from congressional probes. Conveniently for the White House, this definition included White House tape-recordings sought by Ervin Committee investigators to see if they contained conversations about the Watergate scandal (which, indeed, they did – the “smoking gun” that led to the impeachment proceedings against President Nixon). “What do they eat that makes them grow so great?” Senator Ervin asked in reference to the President and his staff. The Senator continued: “I am not willing to elevate them to a position above the great mass of the American people. I don't think we have any such thing as royalty or nobility to let anybody come down at night like Nicodemus and whisper something in my ear that no one else can hear. This is not executive privilege. It is executive poppycock.”
In 1974, the Supreme Court also disagreed with the President's broad interpretation of executive privilege and, in the case United States v. Nixon [418 U.S. 683], a majority of the judges required that the tape-recordings be turned over to Senator Ervin.
Subsequently, the Ford Administration stretched the cloak of executive privilege to another extravagant length. At issue was Operation SHAMROCK, a secret program designed to intercept cables and telegrams sent abroad or received by Americans. Initially at the request of the Truman Administration, the corporations RCA, Global, and ITT World Communications began to store their international paid message traffic on magnetic tapes, which were then turned over to the NSA. Concerned that the operation may have been in violation of a federal law that protects the privacy of communications, a House subcommittee decided in 1976 to investigate the matter and called the corporation presidents to testify as witnesses. The CEOs turned to the White House for guidance and President Gerald R. Ford, through his Attorney General, Edward H. Levi (former dean of the Law School at the University of Chicago), claimed that the corporations were immune from congressional appearances in this case, because SHAMROCK was a sensitive, top-secret project ordered by the White House. The doctrine of executive privilege had now been extended to the private sector.
Members of the House subcommittee were dismayed by this response. “The Attorney General is without any authority,” declared Representative John E. Moss (D, Utah), a respected, long-serving lawmaker. “It is the most outrageous assumption, the most arrogant display by the Attorney General I have seen. Some damn two-bit appointee of the President is not the law-making body of this country.”70 The subcommittee voted for a contempt of Congress citation against any witness who failed to appear for the hearings. When the gavel came down to begin the hearings a few days later, all three CEOs – now having second thoughts about following General Levi's recommendation to stay at home – were in their assigned chairs in front of the subcommittee members, ready to answer questions. The hearing proceeded without sensitive NSA methods being discussed, but with the rightful airing of the improper White House and corporate violation of U.S. privacy laws.
Delay and deceit
Such major confrontations between the branches over secrecy provisions are rare. More commonly, the executive branch simply resorts to “stonewalling” and “slow-rolling” – attempts to avoid sharing information with lawmakers by the methods of delay. Professor Raoul Berger of Harvard University's School of Law, an expert on executive privilege, observed that “bureaucrats engage in interminable stalling when asked for information.”71 This occurred, in just one of thousands of examples, with the secrecy surrounding the harmful effects of nuclear waste at government facilities, concealed since the dawning of the Nuclear Age in 1945 by officials more concerned with nuclear weapons production than with public health.72 Berger spelled out the implications:
At bottom, the issue concerns the right of Congress and the people to participate in making the fateful decisions that affect the fortunes of the nation. Claims of presidential power to bar such participation, or to withhold on one ground or another the information that is indispensable for intelligent participation undermine this right, sap the very foundations of democratic government.73
Prior restraint
As a further attempt to bottle up information within the executive branch despite the right of the people in a democracy to know about almost all of their government's activities, officials sometimes try to curb the publication of materials deemed sensitive. This withholding by the government of the right to publish information is often referred to as “prior restraint.” Understanding that truth and transparency are the sine qua non for successful democracy, courts in the United States have been loath for the most part to permit the enforcement of prior restraints. “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity,” declared the Supreme Court in the celebrated case New York Times v. United States (1971), better known as the Pentagon Papers case.
In this case, the Nixon Administration failed to convince a majority of Supreme Court justices that prior restraint was necessary to prevent publication of a secret Department of Defense history of the Vietnam War. Administration lawyers maintained that publication would be harmful to U.S. foreign policy. The man responsible for the leak, DoD analyst Daniel Ellsberg, believed the contrary to be true: that Americans deserved to know the facts about their nation's combat involvement in Indochina. This knowledge would make the national debate over further warfare in that remote part of the world more meaningful and accurate. Ellsberg was convinced that no secrets of real significance were in the documents; rather, the materials were being kept secret because officials wished to hide from the public a record of various mistakes that had been made, leading the United States deeper into the war. In sharp contrast, Ellsberg's critics saw his decision as being close to treason, because he had revealed classified information without proper authorization – a major counterintelligence taboo.
Ellsberg leaked the documents to the New York Times and the Washington Post. In response, the White House moved to stop further publication of the papers by bringing an injunction against the Times, which was the first paper to print excerpts from the documents. Given the great importance of the issue and the key figures involved, the case moved quickly to the nation's highest court. Mr. Justice Potter Stewart expressed the majority view in the six to three decision against prior restraint:
We are asked, quite simply, to prevent the publication by two newspapers of material that the Executive Branch insists should not, in the national interest, be published. I am convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to the Nation or its people. That being so, there can under the First Amendment be but one judicial resolution of the issues before us. I join the judgments of the Court.74
In 2010, another major leak case would capture the attention of democracies around the world. Out of London, a whistle-blowing group named WikiLeaks managed to acquire more than 400,000 classified documents on the conduct of the U.S. wars in Iraq and Afghanistan – probably the most massive unauthorized disclosure of classified information in American history prior to the Snowden blizzard of documents in 2013. WikiLeaks defended the action by claiming the right of citizens to know the full truth about the wars, including the much higher rate of civilian casualties in the regions. The Obama Administration began a criminal investigation against the group. WikiLeaks lost much of its public credibility when it was discovered that the leaked documents revealed the names of U.S. intelligence asse
ts, sure to be targeted for death by Taliban and Al Qaeda fighters.75
Then, in 2013, the Edward Snowden revelations about NSA's warrantless wiretaps and its collection of “metadata” on the communications patterns of American citizens proved as controversial a leak as the Pentagon Papers had been. As examined further in the next chapter, Snowden provided the media with more than a million classified documents, which he stole from NSA computers.
Secrecy and democracy
A proper counterintelligence concern for the protection of certain information within the executive branch makes sense. No American wants to endanger the lives of public servants in the U.S. intelligence agencies, the assets they recruit overseas, or the FBI's informants at home; and no thoughtful person would countenance the revealing of other “good” secrets. The record indicates that these secrets have been fairly well contained. Former Secretary of State Dean Rusk said repeatedly that he knew of no national security leak that truly damaged America's major interests.76 Similarly, according to a prominent senator in 1976:
Secrets that ought to be kept are being kept. For example, with the single exception of the book by Philip Agee [a CIA officer who defected and wrote an account of his experiences inside the Agency, which revealed the names of some of his fellow officers overseas]…there has been little or no disclosure of CIA sources or methods, or of the confidentiality of sensitive negotiations, such as preceded the partial test ban treaty, SALT I, and the release of the Pueblo crew [a U.S. spy ship captured by North Korea during the Cold War].77
The most egregious security breaches have come from within the executive branch itself, not from the media, lawmakers, or other “outsiders.” For example, the Department of State leaked highly classified information to a writer preparing a favorable profile on then-Secretary of State Henry Kissinger, with no legal action taken against the leaker. Further, as this chapter has documented, the CIA and other intelligence agencies have had personnel who sold secrets to America's enemies, such as Edward Lee Howard, the Walker family, Ames, and Hanssen. Improved counterintelligence within the executive branch would do more to protect the “good” secrets than measures taken against the First Amendment rights of reporters and other scribblers.
Still, the publication of agent identities by WikiLeaks clearly goes beyond the pale. So does the massive leakage of classified documents by Snowden, including detailed intelligence budget data that had nothing to do with his plausible ethical and legal objections to the NSA's metadata program. A further objection to the Snowden leaks is the fact that he could have taken his grievances to SSCI or HPSCI and would have been given an audience by staffers and lawmakers – some of whom agreed with his criticism of the metadata program. Instead, he chose to pass his stolen documents to the media, before racing off to China and on to Russia. A majority of the members of SSCI and HPSCI may have rejected his criticism of the metadata program; if so, that is part of the democratic process. He could have continued to lobby his position quietly within the Intelligence Community and with the oversight committees – and may well have had success eventually, as lawmakers further considered the implications of the NSA's sigint programs aimed at U.S. citizens.
Clearly troubling has been the mountains of information improperly kept from the public, harming the ability of citizens to judge the merits of foreign policy decisions. The Pentagon Papers held out little prospect for genuine damage to the United States, but did serve to inform Americans about the course of U.S. involvement in Indochina. Other government secrets have been equally dubious, such as the files on illegal FBI activities (COINTELPRO), improper CIA operations (CHAOS and, more recently, the torture program), and NSA domestic wiretaps (SHAMROCK and MINARET, as well as its more recent metadata program and warrantless wiretaps). Other examples of inappropriate government secrets over the years have included the Watergate tape transcripts; internal Pentagon reports on atrocities committed by American soldiers in Vietnam (the My Lai village massacre, for instance, or the use of torture at Abu Ghraib in Iraq by military intelligence and in secret overseas prisons by the CIA); secret bombing missions in Cambodia during the 1960s – the list goes on. This form of secrecy, usually clothed in the name of “national security,” has been designed more to keep a “meddlesome” public and their representatives in Congress out of the policy process, and to assure executive domination over the government – sometimes at the agency level against even the will of the President. As historian Arthur M. Schlesinger, Jr., has written: “By the 1960s and 1970s, the religion of secrecy had become an all-purpose means by which the American Presidency sought to dissemble its purpose, bury its mistakes, manipulate its citizens, and maximize its power.”78
Over the years, the executive branch has developed to a high art various methods of evading legislative and public scrutiny over its conduct of foreign affairs. Senator Daniel Patrick Moynihan (D, New York) concluded in 1992 that:
[The Iran–contra affair] could not have happened without the secrecy system. Millions on millions of secret documents every year – some seven million to be semi-exact, for the number itself is a secret. The effect is to hide things from the American people that they need to know. And within the executive branch to hide things from each other…
It's over, you could say. But it's not. A set of captains and kings has departed. Issues are different. But the secrecy system is still in place: the oldest, most enduring institution of the Cold War.79
In 1995, when Moynihan led a special commission of inquiry into excessive secrecy, he concluded that the government was continuing to classify improperly hordes of documents – some 85 percent of the total.80 Disclosures in the WikiLeaks papers indicate that the system of secrecy and deception continued to thrive. In 1998, Congress enacted the Intelligence Community Whistleblower Protection Act to make it easier for those within the IC to raise questions about intelligence activities they find dubious; however, as the Snowden case illustrates (as well as others less well known), whistle-blowers – even those with the best intentions – remain wary of this law's procedures. The law requires them to go through their home-agency channels, thus immediately jeopardizing their intelligence careers. Reformers continue to wrestle with how to make whistle-blowing less career wrenching, while at the same time maintaining necessary controls over classified information. The onus rests with SSCI and HPSCI, as well as the Intelligence Oversight Board at the White House, to develop improved avenues of legitimate dissent for whistle-blowers.
Counterintelligence and accountability
Experience shows that counterintelligence can drive secret agencies toward overzealous operations that can include even spying against law-abiding citizens in their own homeland, as underscored by the Huston Plan and the domestic spy scandal of the 1970s in the United States (CHAOS). Other disturbing examples include COINTELPRO, as well as the CIA's uses of rendition and torture, and the NSA's casual approach to the wiretap restrictions in the United States and Europe.
The United States and North Korea
In the midst of the Cold War, the CIA generated a data bank on 1.5 million American citizens engaged in lawful protests against the war in Vietnam. Many had their mail read, their telephone conversations listened to, their day-to-day lives secretly watched. Further, the FBI carried out 500,000 investigations of so-called “subversives” (mostly Vietnam War dissenters and civil rights activists), without a single court conviction.81 During this period, Bureau agents wrote anonymous letters meant to incite violence among African Americans. J. Edgar Hoover's counterintelligence program, labeled Operation COINTELPRO, involved not only spying on, but also the harassment of, civil rights activists and anti-war protesters in an attempt to fray or break family and friendship ties and stop both movements – all in the name of counterintelligence. The unchecked pursuit of CI objectives imperiled the very foundations of American democracy, casting aside basic U.S. laws and the constitutional right to free expression. Only when the CIA's transgressions leaked to the media in 1974, triggering
the first significant congressional inquiry into U.S. intelligence operations, did these illegal activities cease – at least for a while.
National security letters and warrantless wiretaps
The proper balance between security and civil liberties faced another test after the 9/11 attacks, when the Bush Administration initiated the use of national security letters (NSLs) by the FBI and ordered warrantless wiretaps against American citizens by the NSA. The adoption of NSLs required the recipient to turn over documents and data requested by the FBI. The recipient had to remain silent about having received the letter – essentially a gag rule that strips the hapless citizen of basic rights to a legal defense. The number of NSLs rose from just a few annually in 1978 to 19,000 in 2005.
The resurrection of warrantless wiretaps – a clear violation of law – in the aftermath of the 9/11 attacks is more troubling still. In December 2005, the New York Times reported that President George W. Bush had authorized the NSA (by secret executive order) to eavesdrop on Americans without first acquiring a judicial warrant. Critics maintained that the hush-hush program violated the intent of the Foreign Intelligence Surveillance Act (FISA), passed by Congress in 1978 to establish a special FISA Court to review FBI, CIA, and other agency requests for wiretap warrant authority. The FISA statue stemmed from the findings of the Church Committee that the NSA had participated in widespread surveillance of Americans. The NSA's Operation SHAMROCK monitored every cable sent overseas or received by U.S. citizens from 1947 to 1975; and its Operation MINARET swept in the telephone conversations of an additional 1,680 citizens. The effects of such spying, according to a prominent member of the Church Committee, Walter Mondale (D, Minnesota), was to “discourage dissent in this country.” Not a single one of these cable interceptions or wiretaps underwent judicial review. When Senator Mondale asked the NSA deputy director in public hearings whether he was concerned about the program's legality, the official replied (with a look of embarrassment): “That particular aspect didn't enter into the discussions.”82
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