Whether defined in terms of a system representing the will of the people, or as one of divided powers exercising checks and balances, our government claims legitimacy based on its accountability. That accountability, in turn, relies on transparency. It is no accident that, in light of its historical function as "the broad light of day" said by Supreme Court Justice Louis Brandeis to be the best disinfectant for "men's actions," the press has long been considered our unofficial fourth branch of government.
As the antithesis of transparency, secrecy presents a deeply insidious threat to our democracy: it excludes the press and public from participation in policy debates, inhibits the operation of inter-branch checks and balances, and ultimately precludes the rule of law. Secrecy must therefore not be taken lightly, as the Obama Administration seemed to acknowledge when declaring a new era of transparency and disclosure on its first day in office. But unfortunately, the administration's welcome rhetoric has yet to find its reflection in reality.
The grave dangers of official secrecy explain concerns with the new administration's approach -- or, more accurately, hesitation -- towards restoring the rule of law. Across several policy areas related to national security, the Obama administration continues to resist disclosure, opting instead to follow its predecessor's disappointing habit of hiding inconvenient facts and dubious policies.
Three Threats to Transparency
The dangers of government secrecy require public skepticism of the national security establishment. Cloaked in mystery and largely unaccountable since their emergence following WWII, our national spy agencies have done more to undermine democracy in America than most threats from which they have claimed to protect us. Communism, black nationalism, revolutions abroad, violent extremism, and animal & environmental rights have all proven less threatening to America and our national values than the Red Scare, the Counter-Intelligence Program (COINTELPRO), the Green Scare, and the surveillance regime erected under the guise of the war on terror.
This pattern of secrecy unfortunately continues, visible today in at least three sets of counter-terror policies: torture, warrantless electronic surveillance, and the recent expansion of the FBI's powers. Secrecy in any one of these areas would justify concern. Its pervasiveness poses a problem for our Republic far more dangerous than any threat to our physical security.
Secret policies, and their secret enforcement, endanger the values that have long defined our society and made it worth securing. While presented as necessary for our nation's physical security, government secrecy itself threatens our national security in a more fundamental sense, calling for an engaged, mobilized grassroots movement to shift the landscape of the debate in Washington and restore the rule of law by demanding transparency.
Torture, Transparency, and the Rule of Law
Torture -- which continues at Guantanamo Bay despite the President's repudiation of enhanced interrogation techniques -- implicates secrecy on two fronts. One involves the memos authorizing torture and reporting on its results. To his credit, President Obama has released several previously classified official documents authorizing the previous administration's lawlessness. But despite widespread outrage toward the individuals responsible for those policies, none have faced justice.
A further set of memos analyzing the torture program remains secret. Vice President Cheney claims that they demonstrate the usefulness of torturing detainees, and has ironically called for their disclosure by the CIA. The mainstream discourse has accepted his premise: that the legitimacy of torture turns on its results (i.e., whether enhanced interrogation inspired detainees to provide incremental information, and whether that information has proven reliable).
But no evidence proving the effectiveness of torture would justify it. Torture is illegal. Period. Our laws are unequivocal, and reiterated in domestic statutes; numerous international treaties to which the U.S. is party; and the Fifth, Sixth, and Eighth Amendments to our Constitution. These laws are not negotiable instruments that can be abrogated for the sake of political convenience.
Until those responsible for torture face prosecution for their crimes, our criminal justice system as a whole will face a mounting legitimacy crisis. How can any criminal penalty -- especially the 323,318 prison sentences imposed from 2006-2007 on Americans convicted of non-violent offenses -- appear legitimate when our nation's most notorious criminals violate our most fundamental laws, yet remain not only free, but actively engaged in influencing our national security policies?
President Obama's suppression of two thousand photos documenting the severity of U.S. torture further illuminates the need for transparency. The photos reportedly depict torture and abuse by U.S. military personnel stationed both in Iraq and in Afghanistan. They are horrific: some are autopsy photos of unarmed detainees killed by U.S. troops while in custody; others, according to Retired Major General Antonio Taguba, depict "every indecency,"including physical brutality, psychological abuse, and sexual assault by U.S. forces.
The President has predicated his refusal to release these photos -- and Senators Joe Lieberman (I-CT) and Lindsey Graham (R-SC) have joined him by demanding a legislative prohibition on the photos' disclosure -- on two grounds. First, they claim the torture photos "would not add any additional benefit to our understanding of what was carried out in the past by a small number of individuals." Second, they argue that "releasing these photos would inflame anti-American opinion... thereby endangering [U.S. troops] in theatres of war." Neither argument holds water.
First, the photos in fact expose a great deal. They differ from those already released by exposing a variety of disturbing sexual abuses, from forced exhibition and masturbation to penetration involving brooms. The photographs even show U.S. personnel raping prisoners outright.
The photos also make clear that torture was used not only in extreme circumstances demanding immediate action (i.e., the so-called "ticking time bomb" scenario), but also relatively routinely, pursuant to an official -- though illegal -- policy. Torture committed under the Bush administration was not an aberration committed by a few "bad apples," but a systematic and widespread pattern of abuse condoned by our nation's highest officials and implemented throughout the chain of command.
Second, the argument that releasing these photos would place American soldiers at risk is, quite frankly, preposterous. It is not the pictures that we should fear, but rather the illegal conduct depicted in them.
Torture is a violation not only of the laws of war, the U.S. Constitution, and the oaths of office of everyone responsible, but -- if truly a threat to our troops abroad -- also a crime against them potentially rising to the level of treason. U.S. Air Force Major Matthew Alexander, who led a team of interrogators in Iraq and conducted over 300 interrogations himself, recently wrote that "the No. 1 reason foreign fighters flocked [to Iraq] to fight were the abuses carried out at Abu Ghraib and Guantanamo."
While disclosing torture photos may inspire our enemies to redouble their efforts, that problem suggests that we prosecute U.S. torturers and their commanders, not that we cover up the evidence. Secretary of State Hillary Clinton recently said that "China... should examine openly the darker events of its past and provide a public accounting... both to learn and to heal." Her recommendation is prescient, and applies no less forcefully here at home. According to the editorial board of The Detroit Free Press, "Nothing would command more respect abroad than a demonstration of America's resolve to pursue the truth about itself, wherever the trail leads."
Covering up these abuses helps avoid the prosecution of those responsible. To fully repudiate torture and its legacy, the Obama administration must release the pictures and bring to justice those who authorized and conducted torture. Until then, the rule of law will remain a notion towards which the U.S. -- like China -- will merely aspire.
Secret Surveillance and Secret Policies
Beyond torture, mass electronic surveillance is another arena in which government secrecy continues to impede the transparency necessary to allow a reasoned debate.
As the Obama administration confronts lawsuits over the so-called "Terrorist Surveillance Program" (TSP) crafted in secret by its predecessor (as well as another suit, challenging torture outsourced to other countries), it continues to resist transparency through an unrestrained invocation of the state secrets privilege. The Ninth Circuit's recent rejection of that doctrine's overbroad application is encouraging, as is congressional interest in curtailing it via federal statute. But judicial scrutiny of surveillance is stalled until September and, after appeals, could take years. The surveillance program itself should not escape criticism in the meantime.
The administration's resistance to disclosure suggests the accuracy of fears that the program is essentially an unbounded dragnet. Last year, the FISA amendments supported by then-Senator Obama (despite his earlier promise to filibuster them) conferred on the NSA a vast expansion of its authorities. Its new powers left Americans more vulnerable to warrantless surveillance -- the uses of which could be bent to no end of potentially nefarious ends -- than ever before in our history. Yet the NSA has violated even those expanded powers, and not just in piecemeal fashion: the Department of Justice and FBI have found ongoing abuses so vast and pervasive as to be systemic.
The TSP itself -- whose revelation in 2005 sent a massive shockwave through the policy establishment -- may have been a contrivance, an arbitrarily designated part of a far broader surveillance scheme. Before leaving office, former Attorney General Alberto Gonzales alluded to further operations beyond those previously confirmed. No information about those programs has been released to the public -- or to members of Congress, who have themselves been subjected to illegal monitoring by spy agencies.
Secrecy pervades not only surveillance policies, but also their application. For instance, national security letters (NSLs) authorized under the PATRIOT Act include gag orders that prohibit recipients from disclosing the mere existence of official demands for information, much less their contours. The overuse of NSLs, which routinely demand private information about law-abiding Americans in violation of their Fourth Amendment rights, led the Justice Department to conclude that the FBI had committed "widespread and serious" abuse of its NSL authority.
Without knowing who, in particular, has been subjected to illegal spying, court challenges are untenable: a federal judge found the TSP unconstitutional in August 2006, but her opinion was reversed when a divided panel of three Sixth Circuit judges found no evidence that authorities had actually spied on the particular plaintiff in that case.
Like its predecessor, the Obama Administration has repeatedly asserted the state secrets privilege to impede judicial review, or accountability in the court of public opinion. The Al-Haramain litigation -- in which the Administration faces a hearing in September concerning the program's legality -- involves the only concrete case of electronic warrantless surveillance that civil rights advocates have been able to confirm.
As with the torture photos, then, our government is aiming to stuff genies back into bottles. But where secrecy supporters fear the reaction abroad to the torture photos, policymakers resisting the revelation of domestic surveillance activities instead fear the reaction of the American public. In a democracy, or a representative republic, that particular fear is the most illegitimate ground fathomable for keeping information secret.
Expanding Secret FBI Powers
The recent expansion of the FBI's powers is a third arena reflecting pervasive official secrecy threatening our national values. Last summer, senior DOJ and FBI officials conducted a series of behind-the-scenes "briefings" for aides to some members of Congress and civil rights advocates (including myself) on major revisions to the Attorney General's Guidelines governing the FBI.
First enacted in 1971 to forestall congressional intervention after the COINTELPRO surveillance scandal, the guidelines originally aimed to ensure that the FBI enforces laws, rather than violating them. But the Guidelines' protections have been watered down over time, with each successive revision further unleashing the Bureau's historical habit of harassing and intimidating law-abiding Americans.
Having failed to stop Attorney General Ashcroft from implementing severely problematic revisions in 2003, members of Congress repeatedly objected when Attorney General Mukasey did so again in late 2008. The new Guidelines expand the investigative methods available to agents, reduce supervisory controls and temporal limitations on fishing expeditions, and by eliminating the need for a factual predicate underlying investigations, invite racial and religious profiling apparent in the Bureau's latest investigative successes.
But even the Mukasey Guidelines are the tip of an iceberg. Following last summer's briefings on the Guidelines, members of Congress unsuccessfully demanded an opportunity to conduct oversight and propose amendments. The FBI and DOJ repeated the charade in November, hosting another series of briefings for congressional staffers and advocates (again including myself), this time about the FBI's Domestic Investigative Operational Guidelines (the DIOGs) that implement the Mukasey Guidelines.
Briefings on the DIOGs occurred the week before Thanksgiving, just before they took effect on December 1. At that point, the policy was already substantially complete and agents had begun training on its provisions. There was no meaningful opportunity to suggest changes.
Substantively, the DIOGs included several disturbing new policies that would prove positively incendiary if confirmed, including two separate provisions mandating ethnic profiling. But because they remain completely secret, the DIOGs have received no scrutiny.
In the version discussed with me by the Bureau's Chief Privacy Counsel last November, the DIOGs mandated a "geo-mapping" program modeled on a failed 2007 proposal by the Los Angeles Police Department. In response to concerns about the vulnerability of Muslim American communities to religious profiling, officials claimed that the FBI's version of the policy would raise fewer concerns because it would profile all ethnic & religious minorities, not just Muslims.
The DIOGs also included a section on "ethnic behavior," adopting a discredited analysis released in August 2007 by the New York Police Department. FBI Director Robert Mueller has responded to a recent furor over the FBI's infiltration of groups conducting constitutionally protected activities (like activist groups in Maryland, as well as religious congregations in New York, Los Angeles, and elsewhere) with false claims that the FBI does not "investigate places, we investigate individuals." His assertion is implausible in light of a policy authorizing the Bureau's invasions of mosques, but because that policy remains secret, the FBI has escaped public examination.
This January, I filed a FOIA request on behalf of my former employer, seeking disclosure of the secret DIOGs to enable a public debate. In early March, the FBI conceded that the document represents "a matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence," and promised two weeks later to release it after completing a review of its contents. The FBI has yet to fulfill that promise (although my former colleagues did recently file an appeal).
The State of Play
It is one thing for the execution of polices to be shrouded in secrecy. After all, surveillance is ineffective if the target is aware of being monitored. But pursuing secret policies is altogether different.
While Senator Feinstein (D-CA) is leading a congressional inquiry into torture, she has accepted Cheney's premise that torture can be potentially justified by particular circumstances. Meanwhile, congressional and public oversight of the NSA and FBI has been ephemeral, largely because their policies remain thoroughly opaque.
No one knows which groups, or how many, have been infiltrated by undercover FBI or local law enforcement agents. Similarly, the identities of individuals monitored by the NSA remain secret -- perhaps because they include literally every American. Finally, the photos documenting our torture program, and the memos analyzing its results, are also secret.
Without transparency, we can neither assure ourselves that our government's activities are either helpful or legal, nor can we adequately assess the case for prosecuting Bush administration officials for potential crimes and constitutional violations, as we are legally bound to do. If "national security" includes protecting our nation and its values from threats, secrecy should be considered chief among them.
Harmut Beil is an interface designer, photographer, pilot, and pro-democracy activist who lived in the former East Germany before moving to California for eight years (where I met him before recently moving east to lead the Bill of Rights Defense Committee). He says, "While struggling with surveillance behind the iron Curtain, we saw the western countries, lead by the U.S., as an example of the freedoms we tried to achieve. I am deeply concerned now about the developments of recent years in the U.S....I think the United States could learn a great deal from the history of my country."
How You Can Support Transparency
President Obama said throughout his campaign for the White House that "real change comes from the bottom up," and as a grassroots organizer who rose to our nation's highest office on the shoulders of unprecedented millions, he should know. From that perspective, his administration appears to be waiting -- unwilling to take the lead on restoring the rule of law, but perhaps willing to respond to a grassroots movement either justifying or compelling transparency and accountability.
A coalition of human rights groups is calling on supporters of the Constitution to rally and march against torture later this month in DC. In the meantime, you can take action online to promote transparency and accountability by adding your name to one of several letters compiled by the Bill of Rights Defense Committee for Justice Department officials and members of the Senate Intelligence Committee. We've drafted letters from lawyers, educators, faith leaders and other concerned Americans discussing the need for accountability from the perspectives of their respective fields of expertise.
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