How State Secrecy Protects Government Agencies From Embarrassment, Then And Now
Often when the government wants to keep something secret, it claims that transparency would endanger national security. We’ve been hearing a lot of this lately with regards to Edward Snowden. The leaks have caused “grave harm” to national security and even US foreign policy, Snowden’s critics repeat over and over again.The trouble is, whenever these critics are pressed to explain how Snowden's disclosures have harmed the public interest, they usually do one of two tricky things:
- They say that the harm cannot necessarily be measured, but is likely to derive from transparency, and that even the possibility of harm is serious enough to outweigh the positive aspects of sunlight in a democratic society. For example, last week ODNI general counsel Bob Litt a New York audience that national security leakers are like drunk drivers, who may or may not kill anyone, but endanger the public either way.
- They say that these “grave harms” are real and true and demonstrable, but only people with proper security clearance can hear about them.
The first amounts to “it might do something bad but we have no evidence” and the second amounts to “it has done something very bad but I cannot prove this to you because state secrets.”
We have plenty of historical evidence that in the vast majority of circumstances, national security leaks don’t harm the public interest or national security at all, contrary to what representatives of the security state say.
When Daniel Ellsberg leaked the Pentagon Papers, the US government claimed that publication of the documents would gravely endanger national security. Officials tried to stop the New York Times from printing them, citing grave harm. Decades later, pretty much everyone—including Snowden’s fiercest critics—acknowledges that while the papers revealed significant mendacity on the part of the US government, no real security harm came from their publication. In fact, the nation’s security was arguably better off for the transparency.
The government tried to keep secret documents pertaining to COINTELPRO using the same dishonest excuse. In 1972, NBC news reporter Carl Stern saw the phrase “COINTELPRO—New Left” emblazoned on an FBI file activists had stolen from a Media, Pennsylvania satellite office the prior year. He filed a public records request to the deputy attorney general, seeking information about COINTELPRO, a mysterious codename no one he spoke with could define or explain. The Department of Justice denied Stern’s request, stating that, as Betty Medsger writes in her book The Burglary, COINTELPRO documents were “exempt from disclosure.” Information about the program must “be kept secret in the interest of the national defense and foreign policy,” according to Justice.
Stern appealed to then FBI director L. Patrick Gray. Gray also refused to provide the documents, writing, "This matter involved a highly sensitive operation. It has now been discontinued, but I do not feel that details concerning it should be released since such disclosure would definitely be harmful to the Bureau’s operations and to the national security.” In fact, as Medsger reports, the operations were still in effect.
After one more denial—this time from the attorney general himself—Stern and the Press Information Center filed suit against the Department of Justice. It was the first time a journalist had ever sued the federal government to obtain access to documents under FOIA. Medsger describes what happened next:
Department of Justice lawyers claimed the judge could have no say in the matter because, they said, the federal judiciary lacked jurisdiction over intelligence matters. U.S. district judge Barrington Parker thought otherwise and on July 24, 1973, he ordered the documents be released to him for private inspection. When department officials submitted the files to Judge Parker, it was the first time COINTELPRO files had been seen by anyone outside the FBI. On September 25, 1973, Judge Parker ordered Justice officials to release the files to Stern. At first, the department appealed the order, but acting attorney general Robert Bork withdrew the appeal and turned four pages of COINTELPRO documents over to Stern on December 6, 1973.
These documents contained explosive revelations about Hoover’s FBI’s attack on free speech and association. Stern’s report described how “in a May 1968 memorandum Hoover had informed officials at FBI headquarters in Washington and in key field offices that he had opened COINTELPRO-New Left to “expose, disrupt and otherwise neutralize” the New Left movement.”
Activists, Hoover wrote, “must not only be contained but must be neutralized.” And secrecy was key. “The nature of this new endeavor is such that under no circumstances should the existence of the program be made known outside the bureau and appropriate within-office security should be afforded this sensitive operation.”
Did the release of the COINTELPRO documents endanger national security and foreign policy, as the Department of Justice claimed when it tried to prevent their release? Of course not. Straight out of Hoover’s playbook, officials were trying to keep these records secret to protect the FBI from embarrassment and the political scrutiny that would surely come when Americans realized what the nation's top law enforcement agency was really doing.
Only recently, we learned that an FBI agent placed Rahinah Ibrahim on the No Fly List because of a clerical error. The government secrecy concerns, including state secrets, and argued Ibrahim's case couldn't be tried in court. After eight years of litigation leading to a 5-day trial, the government conceded and the judge found Ibrahim was not a national security threat.
Today, FBI headquarters in Washington bears the name of an obsessive tyrant who went to great lengths to sabotage democracy, and would stop at nothing to keep any and all evidence of that sabotage secret from the public he purported to serve. Some things do not change. When you hear officials and other defenders of state secrecy decry transparency as gravely threatening to national security, remember Carl Stern and Rahinah Ibrahim.
Originally posted on the ACLU of Massachusetts' blog.
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Press ReleaseDec 2024
Free Speech
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Press ReleaseDec 2024
National Security
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VirginiaDec 2024
National Security
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Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
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ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.