Schwarz - Democracy in the dark : the seduction of government secrecy

Democracy in the Dark

ALSO BY FREDERICK A.O. SCHWARZ JR.

Unchecked and Unbalanced: Presidential Power in a Time of Terror

(with Aziz Huq)

Nigeria: The Tribes, the Nation, or the Race: The Politics of Independence

Copyright 2015 by Frederick A.O. Schwarz Jr.

All rights reserved.

No part of this book may be reproduced, in any form, without written permission from the publisher.

Requests for permission to reproduce selections from this book should be mailed to: Permissions Department, The New Press, 120 Wall Street, 31st floor, New York, NY 10005.

Published in the United States by The New Press, New York, 2015

Distributed by Perseus Distribution

LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA

Schwarz, Frederick A. O. (Frederick August Otto), 1935 author.

Democracy in the dark : the seduction of government secrecy / Frederick A.O. Schwarz Jr.

pages cm

Includes bibliographical references and index.

ISBN 978-1-62097-052-2 (e-book) 1. Freedom of informationUnited States. 2. Official secretsUnited States. 3. Intelligence serviceLaw and legislationUnited States. I. Title.

KF4774.S39 2015

342.73'0662dc23

2014035650

The New Press publishes books that promote and enrich public discussion and understanding of the issues vital to our democracy and to a more equitable world. These books are made possible by the enthusiasm of our readers; the support of a committed group of donors, large and small; the collaboration of our many partners in the independent media and the not-for-profit sector; booksellers, who often hand-sell New Press books; librarians; and above all by our authors.

www.thenewpress.com

Composition by Westchester Book Composition

This book was set in Fairfield

Printed in the United States of America

2 4 6 8 10 9 7 5 3 1

To our grandchildren: Ronan, Orla, Kate, Lia, Henry, Aiden, and Phillips

Contents

Democracy in the Dark

And ye shall know the truth and the truth shall make you free. These words, from the Gospel according to Saint John, are carved in large letters on the left-hand marble wall of the huge entrance lobby to the CIAs headquarters in Langley, Virginia.

I walked through that lobby in early 1975 on my way to a meeting with CIA Director William Colby. A young litigator, without previous ties to any senator or to the intelligence community, I had just been appointed chief counsel of the United States Senates Select Committee created to undertake the first investigation of Americas intelligence agenciescommonly known as the Church Committee after its chair, Sen. Frank Church of Idaho.

I met Colby at a formal lunch in his conference room. A careful man who revealed little, Colby was checking on me and a colleague to see if we could be trusted to handle highly secret information.

My first visit to the FBIs fortress-like headquarters had no such subtlety. No genial probing. No fancy meal. Instead, at the start, I was shown photos of severed Black heads on an American city street. The implication was clear: this was done by vicious killers; we protect America against such enemies; stay away from the secrets about how we operate.

As it turned out, the CIA, the FBI, and the rest of the Ford administration, eventually cooperated with the Church Committee as it conducted the most extensive investigation of a governments secret activities ever, in this country or elsewhere. This eighteen-month investigation began my long-term interest in government secrecy.

From the Church Committee, I learned three big lessons about government secrets. First, too much is kept secret not to protect America but to keep embarrassing or illegal conduct from Americans. Examples abound, including FBI efforts to drive Martin Luther King Jr. to commit suicide; the CIA enlisting Mafia leaders in its efforts to kill Cubas Fidel Castro; and a thirty-year NSA program to get copies of telegrams leaving the United States. The Church Committee also discovered that every president from Franklin Roosevelt to Richard Nixon had secretly abused their powers.

The second lesson was that some government secrets are legitimate and worthy of protection. Indeed, one of the reasons the Church Committee succeeded, and the simultaneous House committee investigating intelligence agencies failed, is that we understood and respected the governments legitimate needs for secrecy for some information, while the House committee did not.

The third lesson was that the public must be informed when things go wrongwhen agencies act illegally, improperly, or foolishly, and when presidents, other executives, or Congress fail in their responsibilities. Throughout the investigation, I pushed hard for disclosure, believing, as the Church Committee concluded, that the story is sad, but this country has the strength to hear the story and to learn from it.

With the committee, I saw my main job as exposing illegal and embarrassing secrets in order to build momentum for reform. Therefore, I did not then think deeply about the culture of secrecy. In recent years, there have been near-constant revelations about government secrets and secret programs. Now, with knowledge of a wide range of secrets and secret programs over the course of generations, including many that followed in the wake of 9/11, I use that knowledge to analyze and understand government secrecy and the ways in which its overuse undermines our experiment in democracy.

The subject of government secrecy is often viewed too narrowly. We focus on the classification system when we should also look at the underlying secrecy culture in which it flourishes. The American government operates within a secrecy culture that asks not how much information can be shared with citizens but instead decides to withhold from citizens information needed to exercise their role in our democracy. Far too much information is stamped secret, and then kept secret for much too long.

Crown-jewel secrets must remain secure. But secrecy has too often been used to cover over costume jewelry. Where lies the boundary between legitimate and illegitimate government secrets? And when there is disagreement, who decides where the boundary should be drawn? Too often the country has been having the wrong argument. Instead of focusing only on the dangers of disclosure, the American public and government should give greater consideration to the dangers of secrecy.

Why does the secrecy system have such pervasive influence? And why is it so hard to limit? Sometimes, the motive is to conceal illegality or avoid embarrassment. But secrecy stamps are also often applied, and maintained, for more banal reasons. Human nature and bureaucratic incentives favor secrecy over openness. Secrecy is seductive. In addition, secrecy that causes harm is sometimes secrecy that was appropriate at the outset. To give just one example: the warnings sent to the White House in the summer of 2001 about spectacular al-Qaeda attacks were, at the outset, appropriately classified top secret. But as they accumulated into sustained and serious warnings, the White House should have made the gist of them public and distributed them to all government officials responsible for protecting America against terror attacks. Had this been done, the 9/11 attacks likely would have been prevented. But the culture and seduction of secrecy is such that initial decisions on secrecy are rarely rethought.

It is expensive to maintain increasingly higher mountains of classified documents. The proliferation of secret documents also makes it harder to protect legitimate secrets. But the profligate use of secrecy stamps is a manifestation of a deeper problem tied to secrecys many psychological attractions and the insulation and narrowness secrecy creates. The United States cannot have a flourishing democracy unless We the People are fully and fairly informed about our government. Yet for decades Americans have been living in a Secrecy Era in which the government limits public information about itself while simultaneously collecting more information about its citizens.