Shhh! Last Week Was All About Secrets

Editors’ NoteThe following post is the sixth installment of a new feature, “Monday Reflections,” in which a different Just Security editor will take an in-depth look at the big stories from the previous week and/or a look ahead to key developments on the horizon.

Real democratic debate requires public access to relevant and accurate information. This past week saw several skirmishes in the US government’s ongoing multi-front campaign to control information—and thereby sculpt public opinion—about the its most secret and contentious activities taken in the name of national security.

When the government issues demands that companies turn over information under the Foreign Intelligence Surveillance Act (FISA) or National Security Letter (NSL) statute, the demands generally come with gag orders.  It is illegal not only to reveal the name of the target, but also to tell the public that such a demand has been received at all. On Tuesday, Twitter filed a lawsuit against the U.S. government demanding the right to publish granular statistics about how many national security demands for user information it receives. Other companies — Microsoft, Facebook, LinkedIn, Apple and Google—had previously gone to court demanding the right to publish this information, eventually settling for the ability to give very general ranges of numbers. Twitter wants to be more specific. The company says the gag orders violate its right to free speech. If Twitter’s mostly public conversations garner far fewer secret demands than more private conduct taking place on its social network competitors’ services, the public might—ironically—see that as a selling point.

The next day, on Wednesday, the Ninth Circuit heard oral arguments in the case of [Under Seal] v. Holder, where the Electronic Frontier Foundation (EFF) challenging NSL gag orders. NSLs enable the FBI to obtain records from Internet, telephone, banking and credit-card companies without any prior judicial review or notice to the consumer targeted. Companies receiving one of the over 100,000 such letters issued in the past 10 years are gagged from talking about them. The EFF asked the Ninth Circuit to uphold the District Court, which struck down the NSL statute as violative of the First Amendment.

These cases are data points in a backlash against excessive government secrecy.  In conducting broad national security surveillance, the government has been forced to deputize global Internet companies into their circle of secrecy. Faced with outrage about excessive surveillance from users in America and abroad, the companies now want out. Meanwhile, Americans want to know the scope of domestic surveillance conducted in the name of national security. How many Americans’ communications end up in NSA databases? If the government won’t tell us, perhaps the companies we entrust with our data will.

More broadly, secrecy has shielded—and continues to insulate—the U.S. government from public accountability for the surveillance and hacking revealed by Edward Snowden. Control over the flow of information is giving the intelligence community a huge advantage in writing history and crafting public opinion to its advantage at the cost of broader, and more accurate, perspective.

Take classification. Classified information that makes the government look bad has to be leaked—at great personal risk—to become public. Daniel Ellsberg faced prison for leaking the Pentagon Papers, a military history deeply critical of American conduct of the Vietnam War. The case against him was eventually dropped because of government misconduct.

Former NSA cryptographer William Binney came out of the shower one morning to find a gun pointed at him, the FBI’s response to his revelation that the NSA was using mass surveillance technology domestically against Americans, rather than cheaper more narrowly scoped tools that Binney and his colleagues had developed. NSA official Thomas Drake gave a reporter unclassified information about fraud and abuse in connection with these tools, was charged with violating the Espionage Act and faced up to 35 years in prison before the government let him plead guilty to a misdemeanor.

The Obama Administration has been particularly aggressive in going after journalists in connection with leaks. A few weeks before the Snowden reporting, we learned that the Department of Justice (DOJ) had secretly obtained the records of more than 20 phone lines assigned to the Associated Press (AP) over a two month period. The DOJ wanted to discover was the source for AP reports that the CIA had thwarted an airline bomb attack in April 2012, despite White House officials’ previous statements that they were unaware of any terrorism plots tied to the one-year mark of bin Laden’s death.

Reporter James Risen is potentially facing prison for failing to testify about his sources for his book revealing embarrassing CIA screwups, The man suspected of being the source, Jeffrey Sterling, had sued the CIA for employment discrimination. The government got the discrimination lawsuit dismissed on state secrets grounds, then charged Sterling with violating the Espionage Act for allegedly talking with Risen. The Obama Administration has charged whistleblowers with violating the Espionage Act eight times, 5 more times than all previous administrations combined.

The government has gone beyond classifying facts, to making secret laws. When Glenn Greenwald reported that NSA was conducting bulk collection of Americans’ phone records, Christopher Sprigman and I called the program clearly illegal. Subsequently, the government declassified Foreign Intelligence Surveillance Court (FISC) orders authorizing collection of the phone records and internet records as well. The FISC orders revealed woefully poor (if not utterly absent) legal reasoning that could not have withstood the light of day had they been publicly known.

Classification is being used to control the public narrative about the desirability, effectiveness and the legality of government programs—past and present—that would otherwise be quite controversial.

Last Sunday, Risen gave a speech at Colby College, as a recipient of the Elijah Parish Lovejoy Award for courageous journalism.  In November 1837, Lovejoy was murdered by a pro-slavery mob while he was trying to protect his newspaper’s new printing press. Risen brought home how courageous Lovejoy was in his advocacy, a political position which was seriously out of step with mainstream thought of the time.

By calling for an end to slavery, they were challenging a bedrock political assumption of the United States. The American economy, both north and south, including merchants in Boston as well as the planters in South Carolina, was dependent on slavery, either directly or indirectly, and so a basic prerequisite to being taken seriously in American politics at the time was to accept the continuation of state-supported slavery. To print attacks on slavery meant you were attacking the laws of the United States, and by publicly attacking the laws of the United States you were nothing more than a criminal. And if you were a criminal, you were exposed to the whims of the crowd.

This dynamic is still true today, Risen said. But instead of the radical idea being the abolition of slavery, it’s the speciousness of the U.S. Government’s War on Terror. The basic prerequisite to being taken seriously in American politics today is to accept the legitimacy of the new national security state as a necessary response to modern terrorism. And when everyone in society accepts the same basic assumptions, there don’t seem to be constraints on new ideas. But there are. And the power of those ideas—that slavery is bad, or that America’s betrayal of our moral principles in service of counterterrorism is itself dangerous—often only reveals itself in hindsight.

Today, the U.S. government treats whistleblowers as criminals, much like Elijah Lovejoy, because they want to reveal uncomfortable truths about the government’s actions. And the public and the mainstream press often accept and champion the government’s approach, viewing whistleblowers as dangerous fringe characters because they are not willing to follow orders and remain silent.

An aggressive approach to whistleblowers and the journalists they talk to is an attempt to control the narrative, to limit the available, documented facts to those that favor the government—and more specifically the military—approach.

On the flip side, the government is happy to selectively leak information that makes it look good. There have been many authorized leaks of previously classified information as officials seek to influence, give context to, or dissuade reporting on government activities. This week, the Federation of American Scientists received a denial of its FOIA request to the Defense Department (DoD) (of which the NSA is a part). The organization wanted to know what authorized leaks of intelligence DoD made to the media during the previous 12 months.  The DoD responded that the answer was “classified because its disclosure could reasonably be expected to cause exceptionally grave damage to the national security.” Stephen Aftergood, head of the Federation of American Scientists’ secrecy program asks, “If something is classified, how can its disclosure be authorized (without declassification)? And if something is disclosed by an official who is authorized to do so, how can it still be classified?”

The point is not just that the DoD response is Orwellian. Rather, it’s that leaks that make the government look bad are treason. But leaks that make the government look good, and it’s a secret how many there might be and what they are, go unpunished.

Gag orders, overclassification, whistleblower prosecutions, a heavy hand with journalists, and selective leaking aren’t the only tricks up the government’s sleeve. In another story from this week, the New York Times reported on the DoD effort to rewrite the history of the Vietnam War, leaving out or downplaying the most controversial events of that era. Today, Americans generally consider U.S. conduct in the Vietnam War a mistake. But the 50th Anniversary of the Vietnam War is approaching, and under the rubric of honoring soldiers in that conflict for their sacrifices, the DoD is developing a website, school materials, a Pentagon exhibit, traveling exhibits, symposiums, oral history projects and more at taxpayer expense.

The DoD timeline omits important events critical of our conduct of the war. For example, it initially referred to the 1968 My Lai massacre, in which American troops killed hundreds of Vietnamese civilians, as the My Lai Incident. After complaints, it revised the entry, but still refuses to use the word commonly associated with that particular atrocity: “massacre”. Historians say that the DoD website lacks context and that the timeline “omits too many important developments, while including a significant number of dubious importance” to give the Vietnam War a rosier glow.

Fortunately, Ellsberg and other people who lived through that era, including Tom Hayden, John Kerry, civil rights leader Julian Bond, Lawrence J. Korb, a former assistant secretary of defense under President Ronald Reagan, and others are still alive to call foul. Over 500 scholars have signed a letter of complaint to the DoD. Many of these first person witnesses will not be here in 25 years to protest feeding the next generation whitewashed pablum about American history. And without Ellsberg having given us the Pentagon Papers, Americans still would not know about much of our shameful activity in that war. Only with hard, public, documentary proof might we hope to have the clear vision needed to avoid unnecessarily repeating the mistakes of the past.

In the end, the battle over information is a battle for the hearts and minds of Americans—and the concomitant ability to direct future government policy without serious opposition. Revisionist history, gag orders, overclassification, legal threats to whistleblowers and journalists, selective leaking and self-serving declassification; these things interfere with Americans coming to terms with uncomfortable truths about our government’s actions, something essential for a real democracy.

 

  

About the Author(s)

Jennifer Granick

Surveillance and Cybersecurity Counsel at the ACLU's Project on Speech, Privacy and Technology Follow her on Twitter (@granick).