Tuesday, August 10, 2010

Secrecy Used to Cloak Illegal Conduct

Unnecessary lies: A whistleblower's perspective on; Necessary Secrets: "
Gabriel Schoenfeld, in his recent book, fails to mention that some government secrets hide illegal government activity.
by Jesselyn Radack, August 9, 2010
Secrecy is a cornerstone of autocratic rule and unaccountable political systems, not democracies. ...
So, why are Schoenfeld's arguments so palatable? In masterful sophistry, Schoenfeld uses reverse psychology: The New York Times  failed to "exercise responsibility" and "broke the public trust" by exposing electronic eavesdropping, not the Bush administration or NSA by engaging in it. Whistleblowers like Thomas Tamm violated their oath of secrecy by disclosing the scandal, not the government by violating its oath to uphold the Constitution. Although he characterizes the Watergate and the Iran-Contra affairs as "renegade governmental activity," secret surveillance (a close cousin to the illegality that underpinned Watergate) gets a pass because in some ├╝ber-paternalistic way it is meant to protect us — and anyone who tries to bring forth information that would allow the public to exercise its sovereign prerogative of democratic debate be damned, or better yet, sent to prison. Isn't incarceration the ultimate way to stifle public debate by cutting off alternative information at the source? ...
In support of Schoenfeld's novel prosecutorial theory, he trots out many of the old arguments that have been debunked. For example, he states that the Foreign Intelligence Surveillance Act (FISA) was too "cumbersome." He also dredges up the tired excuse that "advances in telecommunications technology during the two and half decades since FISA was enacted render[ed] it unsuitable" and "[r]equiring a court order to intercept [e-mail] communications was a preposterous barrier to U.S. intelligence gathering." All of this is belied by the fact that FISA was massively expanded in October 2001, at the Bush administration's request, to (in the president's own words) "allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones." After assuring the country that he had all the surveillance tools he needed, Bush proceeded the same month with his secret spying regime. ...
all three federal judges to consider the question have concluded that Bush's NSA program violated criminal law (something Schoenfeld neglects to mention). The clear criminality of the NSA program is further amplified by Schoenfeld's glaring omission of the FISA Amendments Act of 2008 — referenced not once in his entire book — which immunized telecommunications companies, terminated all pending lawsuits against them and legalized warrantless wiretapping. It raises the question of why such legislation was necessary, especially the retroactive telecom-immunity provisions, if no law had been broken. ...
Overly broad, ambiguous laws have an irresistible quality, and now — ignoring the president's own edict to "look forward, not backward" — the Obama administration, through its marching orders to Attorney General Eric Holder Jr., has literally taken a page from Schoenfeld's book by forcing a trial for espionage on a person who is not a spy: Thomas Drake. Unfortunately, the Espionage Act does not distinguish between spying and "leaking." A hurdle in the Drake prosecution will be demonstrating to a jury that he had the requisite state of mind that is a crucial element of the crime. Specifically, did he have "reason to believe" that his disclosure — if he made one at all — "could be used to the injury of the United States"? There is more than a reasonable doubt that Drake had any such state of mind. When Drake went to a reporter, it was only after his internal complaints fell on the deaf ears of his bosses, the NSA's general counsel and inspector general, the Defense Department's inspector general and the House and Senate intelligence committees. His disclosures were a matter of public concern and were clearly of public significance: The NSA went on a "billion dollar boondoggle" and ultimately chose an extremely intrusive surveillance program over an even better program that protected privacy. ...
The old adage goes, "it's not the crime, but the cover-up" that will ultimately get bad actors. Under this calculus, at least malfeasors are held accountable at some point. But Schoenfeld's version appears to be "it's not the crime — ever — but the exposure of it" that will be penalized. I submit that when secrecy is used to cloak illegal conduct, that is what should be punished.
Jesselyn Radack is the homeland security director at the Government Accountability Project. As an ethics adviser to the Department of Justice, she blew the whistle on the FBI's interrogation of "American Taliban" John Walker Lindh without an attorney present.
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