Obama's Plumbers

This time, a secretive president has gone too far.

You have to feel a teeny-tiny bit of sympathy for the Obama administration, which buckled to congressional pressure last year by agreeing to investigate a series of leaked news stories about clandestine victories in the war on terror, and is now being bludgeoned by many of those same Republicans for trying to get to the bottom of one of those leaks by gaining access to the phone records of investigative reporters. Would it have been better if the Justice Department waterboarded everyone they suspected of leaking?

On the other hand, what Justice actually did, which was to secretly apply for subpoenas for the phone records of 20 reporters for the Associated Press over a period of almost two months, was probably not a great idea. The normal procedure is to negotiate for access to journalists' records, which prosecutors refused to do out of fear of compromising their investigation. The White House thus managed to simultaneously outrage congressional Republicans and the press, which is not that easy to do. The administration tried to undo the damage by clumsily re-introducing a press shield law that had failed to pass in 2009; the effect was to reinforce the meta-narrative of Obama vs.The Media. But the press, in this case, is just collateral damage; the real story is "Obama in the Grip of Secrecy."

The irony is that, in this case, the leak might well have justified some kind of inquiry even absent the rightwing clamor for it. The AP story, published a year ago, revealed that the CIA had thwarted a bomb plot in Yemen that involved an upgrade of the "underwear" bomb that failed to explode Christmas Day 2009. Subsequent accounts clarified that the plot had been foiled by a sting operation carried out by a Saudi agent. The stories appear to have compromised an irreplaceable undercover operative who had to be whisked out of the region.

One intelligence official I spoke to said that the leak would make it tougher to recruit such operatives in the future (an odd echo of the press claim that turning over records to the government scares away confidential sources). A congressional aide familiar with the intelligence argued that "a leak that compromises an asset doing something as significant as helping prevent a bombing from reaching its intended target is a highly significant leak and ought to be prosecuted." Even the letter that Greg Pruitt, the chairman of the AP, wrote to Attorney General Eric Holder objects to an "overbroad" search conducted without prior warning, not to the search itself.

But the Obama administration has made so many wildly exaggerated claims on secrecy issues in the past that the credibility that automatically accrued to a president who once worked as a professor of constitutional law has long since evaporated. It was impossible to suppress a smirk when Holder insisted that the latest set of leaks had "put the American people at risk." Over the last four years, the Obama Justice Department has mounted elaborate investigations under the Espionage Act of 1917 to prosecute, among others, self-styled whistleblowers who have tried to expose the use of torture by the CIA, or a costly boondoggle at the National Security Agency. The act was written to target individuals who disseminated propaganda or revealed military secrets in order to compromise the American effort in World War I, but none of the alleged acts have seemed to seriously jeopardize national security. Obama, as has been often noted, has used the law to prosecute leaks more often than all of his predecessors combined -- six times as opposed to three. That is not a record to be proud of.

The real pattern here is the president's insistence that the war on terror has to be classified. Obama, as I wrote last week, after agreeing in 2009 to release the memos written by George W. Bush's Office of Legal Counsel to justifiy the use of torture, has deferred to the military and the intelligence community on almost every other decision on classification. John Kiriakou, a former CIA agent, has been imprisoned for describing -- leaking -- torture tactics to the press, but no one in the agency has been punished for torturing people, and the CIA's investigations of its own alleged abuses remain classified. Worse still, the defendants in the 9/11 tribunal at Guantánamo, now in its early phases, have been prohibited from describing the abusive practices to which they were subjected, since being tortured exposed them to classified CIA practices. One military lawyer I spoke to pointed out that even the charts explaining the level of classification assigned to various kinds of documents are themselves classified, exposing him to the danger of inadvertently revealing classfied information.

The mania for secrecy has become a defining feature of Obama's war on terror. Why is this so? Almost all presidents of course, are quick to defer to the CIA; and a president who has tried to rein in some of the agency's worst practices by prohibiting torture and closing "black sites" around the world may feel that surrendering to its obsession with secrecy is a price worth paying to preserve perpetually endangered CIA morale. Perhaps, in effect, Obama has concluded that he can hold the CIA accountable for what it does now by agreeing not to hold agents accountable for what they did before.

But why the endless leak investigations and prosecutions, the wielding of the mighty hammer of the Espionage Act? I wonder if this is the inevitable consequence of conducting a war through Special Forces and intelligence operatives. Bush made extensive, and highly excessive, use of the U.S. military to conduct the war on terror. Obama promised to use diplomats and aid officials as well as soldiers. We haven't seen much of that, and the Republicans' cynical exploitation of the killing of four American officials in Benghazi probably means that we will see even less of it. Instead, Obama has replaced soldiers with drones and undercover operatives, whether in Pakistan or Yemen or Somalia.

The war on terror has thus become increasingly classified because it is being waged by instruments that are, themselves, classified. The whole effort has become a giant secret whose details are to be disclosed only when doing so makes the president look good, as in the glorious operation to take out Osama bin Laden. Disclosures of anything else put the American people at risk.

The proposed press shield law, which probably would not protect reporters from the demand for material made in the AP investigation but would have strengthened the government's obligation to negotiate for the material in advance, may constitute a slightly embarrassed recognition that the administration has gone too far. The more important question is whether a president who ought to by rights be supremely sensitive to the virtues of transparent government and an informed citizenry understands that he has lost his bearings. The time has come for Obama to tell the CIA and the Justice Department to back off.

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Terms of Engagement

Out With It

Americans deserve to hear the dirty secrets of the CIA’s war on terror. We’ll all be better off with the truth.

In April 1975, Sen. Frank Church impaneled a special investigative committee to look into shocking accounts of CIA dirty tricks. The Church Committee ultimately published 14 reports over two years revealing a clandestine agency that was a law unto itself -- plotting to assassinate heads of state (Castro, Diem, Lumumba, Trujillo), carrying out weird experiments with LSD, and suborning American journalists. As a result, President Gerald Ford issued an executive order banning the assassination of foreign leaders, the House and Senate established standing intelligence committees, and the United States set up the so-called FISA courts, which oversee request for surveillance warrants against suspected foreign agents.

But the war on terror unleashed the CIA once again to carry out dark deeds against America's enemies -- torture, secret detention, and "rendition" to "black sites" across the world. How have Americans reckoned, this time, with the immoral and illegal acts carried out in their name? They have not: the CIA has retained control over the narrative. As the Constitution Project's Detainee Treatment report describes in great detail, the CIA falsely reported -- to the White House as well as to the public -- that torture "worked" in wresting crucial information from high-level detainees, and thus needed to be an instrument available to interrogators. Officials like Vice President Dick Cheney repeated ad nauseum that the CIA's dark arts had saved thousands of lives. Is it any wonder that a plurality of Americans think the United States should torture terrorists?

I wrote last month about the detainee treatment report, but I find it incredibly frustrating -- and all too telling -- that the findings were overwhelmed by the tidal wave of coverage of the Boston bombing. Because we fear terrorism far more viscerally than we feared communism -- certainly by 1975 -- we are all too susceptible to the view that America cannot afford to live by its own professed values. But of course that's what Chileans and Brazilians thought in the 1970s. That's why Sri Lankans have granted themselves the right to slaughter homegrown terrorists wholesale, and react furiously to any hint of criticism.

People give themselves a pass unless and until they are forced to face the truth, which is why a public airing of history is so important -- and so politically fraught. There's always a compelling reason to avoid facing the ugly truth. In early 2009, Patrick Leahy, chairman of the Senate Judiciary Committee, called for an independent commission to investigate allegations of torture.  But President Barack Obama's spokesman said that the proposal would not be "workable." We know what he meant: you can hardly blame the president for avoiding a colossal fight with Republicans over the past, especially, when he had so many fights he needed to wage over the future.

Obama probably thought that he could put the problem to rest by ending torture as well as the cult of secrecy surrounding CIA practices. He succeeded on the first count, but failed on the latter. In April 2009, he agreed to release the so-called "torture" memos written by President George W. Bush's Office of Legal Counsel (OLC), as well as photos of prisoner abuse from Iraq and Afghanistan. But then, after a fierce debate inside the White House said to pit Obama's military commanders against his counselor, Gregory Craig, among others, the administration reversed itself. The president later signed legislation allowing him to withhold the pictures if he determined that the release would harm national security.

Once adopted, the logic of national security carries all before it. The release of the OLC memos, the detainee treatment report notes, was the high-water mark of Obama-era transparency on torture. CIA reports on the death of three prisoners in custody as well as on broad policy towards detainees remain classified; so do the results of inquiries by the armed forces criminal investigation division. The agency's ability to withhold information probably contributed to the Justice Department's decision not to pursue indictments on any of the 100 or so cases of CIA mistreatment which it investigated. Defense lawyers in the military trial of the "9/11 defendants" held at Guantanamo have had to work around a "protection order" which classifies entire subject areas -- including anything related to the defendants' arrest or capture, the conditions in which they were held, or the interrogation techniques to which they were subjected. Whatever becomes of the defendants, Americans will learn nothing from the trials.

On matters of secrecy, Obama has been little better than Bush. This has become notorious in the case of the drone program, a centerpiece of Obama's prosecution of the war on terror. In a recent speech at the Oxford Union, Harold Koh, the former chief counsel of the State Department, said that the administration has failed to be "transparent about legal standards and the decision-making process that it has been applying."

I asked Koh why the White House has so regularly deferred to the CIA on issues of transparency and accountability. Koh pointed out that the CIA's concern that exposing past bad acts could serve as a recruiting tool for al Qaeda was hardly trivial. But, he said of the White House: "They don't have a good balancing mechanism on the value of disclosures. It's almost like if nobody's clamoring for it, the pressure can be resisted." The pressure comes from the outside -- from the press, from civil-liberties groups, and activists -- but not from the inside. So the CIA carries the day.

And yet it's not too late to expose, and learn from, the sorry history of the last decade. Last December, the Senate Intelligence Committee approved a 6,000-page report on the finding of its secret investigation into the treatment of detainees. The report, which has not been made public, describes the CIA's detention program in minute detail. Among other things, it puts to rest the canard that torture works. In his confirmation hearings, CIA director John Brennan admitted that the report had led him to question "the information that I was given at the time" that so-called "enhanced techniques" had saved lives.

Brennan has learned this; other Americans may not have the chance. The CIA is likely to both dispute the findings and to try to keep them secret. In a letter to Obama, Sen. Mark Udall complained that Brennan had shown "little to no interest" in working with his staff, and had already missed the deadline for response by more than two months. A congressional aide said that there was no sign that the White House had even examined the report, much less prepared a response.

The good news is that the irrepressible Vice President Joe Biden recently advocated publishing the findings, saying that Americans needed to "excise the demons" through a full disclosure of past abuses. Biden even compared the redemptive value of facing the truth on torture to the effect of the war-crimes tribunals on Germany. Obama probably didn't authorize the analogy, but he may well have signed off on the position -- in which case the comment should be read as a pre-emptive shot across the CIA's bow.

In the course of questioning Brennan during Senate hearings, Sen. Udall quoted Howard Baker, the widely admired Republican moderate from the bygone age of Republican moderates, to the effect that the Church Committee report may well have weakened the CIA in the short run, but strengthened it in the long run -- by reminding the agency of what it should as well as shouldn't do. Apparently even the CIA agrees, since its website carries an admiring description of the committee's findings. If and when the Senate Intelligence Committee report is made public, in whole or in part, current and former CIA officials, conservative pundits, and Republican politicians will no doubt join as one to warn that America's national security has been compromised, its enemies emboldened, its intelligence operatives compromised. That's what they said in 1975. They were wrong then, and they will be wrong now.

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