THE BLOG
10/29/2010 03:35 pm ET | Updated May 25, 2011

When Governments Fail to Disclose Material Facts

Not all lies matter. Some we dismiss as not all that important. That's as true in personal life as it is in national and international affairs. Lies that are "material" profoundly affect our conduct and can severely impact the way we lead our lives. In the eyes of the law, misrepresentations of "material" facts are taken very seriously.

For example, the marriage of an individual who fails to disclose that he never properly got a divorce is automatically invalid. Immigrants who fraudulently gain entry into the United States by failing to disclose their correct identity or background are subject to deportation twenty years or more after their entry. A stock-broker selling securities who has material information about a stock's volatility which he deliberately omits to mention to a gullible investor may be subject not only to civil liability to the investor, but also to criminal liability.

What if it is the government that fails to disclose a material fact, one which if disclosed would have significantly changed your attitude about important public issues? Take the Iraq War: If President George W. Bush had actual knowledge (enormously difficult to prove) that Iraq had no WMD capability and failed to disclose that fact in seeking support for going to war, the families of victims of that war might -- at least theoretically -- have a cause of action against the US government for fraudulent misrepresentation (although generally the government is immune from suit except in instances where it waives its immunity). Still, as a moral if not legal matter, governments should fare no better than individuals who fail to disclose "material" facts. Small lies are one thing, but lies that change your perceptions about going to the altar or fighting on a battlefield are quite another matter.

Today, one of the most serious matters affecting American citizens is what to do about the growing strength of Iran in Iraq and Afghanistan, and on Israel's frontiers (Hezbollah in Lebanon and Hamas in Gaza), and its continued export of terrorism and development of nuclear capability. The Obama Administration has tried to deal with these threats by a policy of "engagement" even while pursuing more conventional forms of political pressure like UN sanctions. But, as the documents released by WikiLeaks on October 26th reveal, the Obama Administration withheld pertinent information which, if revealed, would have drawn into question, if not wholly undercut, its moves to open a diplomatic dialogue with Iran's leaders. It withheld from the American public evidence of the Iranian regime's continuation of terrorist activities and other actions contrary to US national security interests. Had this evidence been disclosed, political support for engagement with Iran (which has proven futile in the past 30 years) would have dried up as such disclosure would have made evident that the Obama Administration's reinvigorated efforts would serve only to convince Iran that its behavior could continue without serious adverse consequences.

For example, the WikiLeaks documents released last week made clear, said the Vice President of the European Parliament, Dr. Alejo Vidal Quadras, that the Obama Administration knew that Iran was rapidly "gaining control of Iraq at many levels" even while it overruled objections not to turn over to Iraqi forces control of Camp Ashraf, an enclave 40km. north of Baghdad where approximately 3500 Iranian dissidents are quartered. Hundreds of parliamentarians in the US, Europe and the Middle East had pointed out that transfer to Iraqi control might lead to mass executions were the Camp Ashraf dissidents forcefully repatriated to Iran by Iraqi leaders anxious to placate Iran.

Nevertheless, the Obama Administration turned Camp Ashraf over to Iraqi forces without ever revealing a material fact: that the rush for "engagement" with Iran was bought at the price of psychological torture of Camp Ashraf's residents, repeated forays, and shooting sprees that killed and maimed hundreds of dissidents. Despite the outrage voiced in many quarters, the intimidation, coercion and atrocities have only been put on hold, in abeyance, ready to be resurrected in full at a more propitious moment. To rectify the situation and avert another tragedy, the US should resume protecting Ashraf or at least ensure that a UN monitoring team is stationed there.

Countless American citizens and their representatives in Congress acquiesced to "engagement" with Iran on false premises. The Obama Administration's readiness to turn a blind eye to the fate of Camp Ashraf's 3500 residents is now public information, in large measure through the release of the WikiLeaks documents. As the price of "engagement" with Iran has been revealed, it is up to the American populace and its representatives in Congress to determine if they are willing to acquiesce in the politics of appeasement -- not least, through the abandonment of Iran's most stalwart opponents.

Allan Gerson is the Chairman of AG International Law, a Washington-based firm specializing in the resolution of complex issues of international law and politics. Along with other attorneys, he advises the MEK, the resistance group whose members are located at Camp Ashraf.