No Comment — October 27, 2007, 10:54 am

The Secrecy Game

Max Weber taught us that secrecy is the implacable foe of democratic society. It can never be eliminated entirely, because every government has military secrets and similar matters which the interests of state security require it to safeguard. But left unchecked, secrecy becomes a tool in the hands of the political schemer, who will use it to play political games with his domestic adversary. Beyond this, the great strength of democracy is its ability to subject political ideas and plans to the test of the marketplace of ideas where the weak will falter and fail and only the most able will succeed. Secrecy therefore inevitably makes the decision-making process a little bit stupider. And sometimes it makes it profoundly dumb.Max Weber, Wirtschaft und Gesellschaft, vol. 2, ch. 9, sec. 2 (1919).

The Bush Administration’s six year epic of incompetence and failure on the national security front can be taken as a very persuasive proof of Weber’s thesis on many fronts.

And at this point, that fact seems slowly to be sinking in on the national intelligence establishment itself. Every administration plays some game with intelligence classifications. But over time the Bush Administration’s games have gotten successively cruder, the veil of legitimate purpose successively thinner. The artifice of claims of “state secrecy” once greeted with deadly earnest, now draws derisive smiles. And in the end this will not serve the nation’s interests either, because it increases the risk that legitimate secrets will be exposed as the illegitimate and politically motivated claims of secrecy are rejected.

Analysts I have spoken with in the last few weeks are increasingly nervous about the highly abusive and politically manipulated use of intelligence classifications. I posted an interview with career CIA covert operative Valerie Plame on Thursday, in which she describes how secrecy claims were used to protect political operatives in the White House whose criminal conduct in violating security classifications was in question (note the double play: bogus national security invoked to trump legitimate national security, a perfect demonstration of the thesis).

But these days you only have to pick up a newspaper to read about the Bush Administration’s puerile antics with state secrecy claims. They have been used consistently to block public disclosure of the memoranda authored by John Yoo and his colleagues (including, we’re told, Michael Chertoff and Alice Fisher)which reached to legitimize torture. There is no imaginable basis for the claim of secrecy. Indeed, the techniques are well known and circulated, and the CIA has since uncovered manuals showing that Islamic militant organizations are training against these techniques. The audience that the Administration wants to keep in the dark is not “the enemy.” The enemy already has the information. The audience that the Administration wants to keep in the dark is the American public. The objective of this exercise has nothing to do with national security. It has to do with covering the political posterior of the Administration, shielding the reputations of individuals who have rendered reprehensible, and potentially criminal advice to further the torture scheme. However, soon enough these memoranda will all be in the public sphere. Four more were delivered to the Senate Judiciary Committee just in the last few days.
Marty Lederman offers a brilliant post discussing these issues and the Administration’s penchant for gamesmanship with secrecy at Balkinization. He picks up on several developments I had missed.

Equally troubling, perhaps, is the now-selective refusal of the Administration to share with Congress the documents underlying the NSA’s terrorism-related surveillance since 2001. In particular, it is essential that Congress fully understand what legal representations were made to induce the telecom companies to violate the law, since the Administration is now insisting that Congress give such companies retroactive immunity for such wrongdoing. Immunity would only make sense, after all, if at a minimum it had been reasonable for the telecoms to rely on the Administration’s legal justifications — justifications that were, recall, so far beyond the pale that Jack Goldsmith immediately saw them as “a legal mess,” repudiated them, and (along with dozens of other high-ranking DOJ political appointees) threatened to resign if the Administration continued to rely on them. Let’s say, just for example, that the telecoms were told: “Well, yes, this would violate FISA and other statutes — but the Commander in Chief has a constitutional authority to disregard such statutes, and to immunize your violation of them.” Would reliance on that sort of a legal justification have been reasonable? Do we really want to immunize companies who were willing to violate statutes on such a basis? (Of course, it’s possible they were provided a more credible argument, too — the important point is that without seeing the underlying documents, Congress can’t have any idea whether the companies’ conduct was reasonable or not.)

And since our inboxes are now overflowing with examples of the arrogant attitude towards secrecy that this reflects, here’s another one.
Michael McConnell started his first two months on the job with a solid record for candor and accuracy. He avoided political doublespeak. And then something strange happened. He became a shameless and irresponsible political propagandist. Maybe sometime in the future he’ll give us his account of what happened that caused this transformation. In any event, he’s now been called twice for false statements to Congress (which is a crime). And he tends to grease his way into discussions now by telling us that open discussion of the matters with which he is charges “will cost American lives.” In sum, McConnell is playing precisely the same game that Weber talks about in his magnum opus, and which he based on specific historical experience–namely how the Oberste Herresleitung used secrecy to emasculate the parliament and convert Germany into a military dictatorship in 1917-18.

With that background, it should come as no surprise that McConnell now plans to keep America in the dark as to the national intelligence estimate (NIE) on Iranian nuclear programs. Pam Hess of AP reports:

National Intelligence Director Mike McConnell has reversed the recent practice of declassifying and releasing summaries of national intelligence estimates, a top intelligence official said Friday. Knowing their words may be scrutinized outside the U.S. government chills analysts’ willingness to provide unvarnished opinions and information, said David Shedd, a deputy to McConnell.

He told congressional aides and reporters that McConnell recently issued a directive making it more difficult to declassify the key judgments of national intelligence estimates, which are forward-looking analyses prepared for the White House and Congress that represent the consensus of the nation’s 16 spy agencies on a single issue. The analysis comes from various sources including the CIA, the military and intelligence agencies inside federal departments.

Now we know that the NIE has been done and gathering dust for more than three months. We also know that Vice President Cheney’s office, which promptly leaks NIEs when it finds them useful, absolutely hates this NIE and has been doing everything it can think to do to put it off. Why might that be?

Sources close to the NIE tell me that it would work at cross-purposes with the Administration’s fall roll-out of its new war effort against Iran. The NIE will apparently conclude that Iran is diligently pursuing a nuclear weapons program, and that Iran is pursuing a delivery system. It will also conclude that even on the fastest possible track it is still a couple of years away from having anything meaningful. Which means this threat does not become an acute one until some time after Bush and Cheney leave office.
In other words, it’s an NIE that the Vice President badly wants to drop somewhere behind a filing cabinet. And the best way to do that is to declare it’s so super secret that no one can have a copy of that particular decoder ring.

No decision is more important to a democracy than the decision whether or not to take the nation to war. Our Founding Fathers fully appreciated that. That decision making process is cheapened when the Executive arrogates to himself all the available information, claims a monopoly on it, and attempts to exclude others from the process by saying they are not privy to the information he has. Listen carefully. That gurgling is the sound of a democracy being strangled.

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