The Transparency Fix

Secrets, Leaks, and Uncontrollable Government Information

Mark Fenster

• Editorial: Stanford Law Books
• Año: 2017
• ISBN:
  9781503602670
• Edición: 1
• Categoría: Law
• Categoría: Law Theory & Practice

Is the government too secret or not secret enough? Why is there simultaneously too much government secrecy and a seemingly endless procession of government leaks? The Transparency Fix asserts that we incorrectly assume that government information can be controlled. The same impulse that drives transparency movements also drives secrecy advocates. They all hold the mistaken belief that government information can either be released or kept secure on command.

The Transparency Fix argues for a reformation in our assumptions about secrecy and transparency. The world did not end because Julian Assange, WikiLeaks, and Edward Snowden released classified information. But nor was there a significant political change. "Transparency" has become a buzzword, while secrecy is anathema. Using a variety of real-life examples to examine how government information actually flows, Mark Fenster describes how the legal regime's tenuous control over state information belies both the promise and peril of transparency. He challenges us to confront the implausibility of controlling government information and shows us how the contemporary obsession surrounding transparency and secrecy cannot radically change a state that is defined by so much more than information.

I

TRANSPARENCY, SECRECY, AND THE DREAM OF INFORMATION CONTROL

1

Liberating the Family Jewels

“Free” Information and “Open” Government in the Post-War Legal Imaginary

The concepts of “freedom of information” and the “right to know” carry the weight of the transparency advocacy movement, and their historical and theoretical development therefore deserve close consideration. The concepts assumed their current meanings in a highly influential campaign engaged in by press organizations and a government committee to fight against government secrecy, but they emerged first in response to two related issues facing the press as World War II wound down: concern about the availability of foreign markets for American news gathering and distribution and the U.S. media industry’s desire to define and export American free press and liberal democratic ideals. This initial campaign established an understanding of the state, information, and the press that remain key elements of access to information law today—understandings that themselves rely upon broader theoretical justifications developed in modern political theory. In their development and deployment, the two concepts reveal transparency’s symbolic meaning, as well as its emphasis on the state as an entity defined by its information. I begin this chapter with a parable about a fantastic but real cache of government documents and then offer a history of early transparency advocacy and its relationship to prevalent theories of democracy.

The Family Jewels

Imagine yourself an investigative journalist meeting a confidential, high-level government source. Fearful of detection and eavesdropping, your source schedules meetings in locations like darkened parking garages late at night or a crowded public park in broad daylight. She tells you about a massive, unprecedented collection of documents nicknamed the “Vandamm File,” commissioned by the director of the CIA and produced for the president and his closest advisors. It documents a long history of illegal or questionable CIA activities, including coups in far-flung countries, successful and failed assassinations of foreign leaders, friendly relations with very bad people in troubled nations, and illegal domestic activities, including the surveillance of American citizens. These files will never come to you except through illegal means—indeed, the mere fact that you know of their existence puts your source, and even you, in legal and possibly physical danger. These are the most significant secrets of a government you have come to see as filled with politicians, spies, soldiers, and bureaucrats who expend enormous effort to conceal their incompetent and nefarious acts behind a veil of secrecy and lies.

Their acts are wrong, as is their secrecy—indeed, for a reporter, the latter sin is anathema to you, your editors, and, you presume, your readers. In the absence of legal authority to require their disclosure, you view it as your obligation to bring the file’s contents to light. Despite the threat that the CIA and perhaps the entire federal government will come after you and your source, your commitment to exposing the file outweighs the personal and professional costs of doing so.

The Vandamm File is surely the stuff of fantasy—the dream of every investigative journalist and a narrative MacGuffin for a summer film blockbuster.¹ If it did not actually exist, any novelist or screenwriter with a decent imagination would have devised it as a means to kick-start a ripping yarn.

But it did exist. In 1973, Director of the CIA James Schlesinger had ordered production of a compendium of documents, later nicknamed the “Family Jewels,” that detailed the CIA’s actions since 1959 that had broken laws or at least exceeded CIA authority under the National Security Act of 1947. The results of this classified internal investigation began to leak soon thereafter. On the front page of its December 22, 1974, issue, the New York Times published a story by investigative journalist Seymour Hersh based largely on leaks from whistleblowing CIA officials about Operation CHAOS, an intelligence program to spy on domestic dissidents, especially those in the anti-war movement. Coming four months after President Richard Nixon’s resignation, the article revealed that the Nixon administration’s secret abuses of power constituted more than the wiretapping of Democratic Party headquarters and the dirty campaign tricks that the Watergate scandal revealed.

The treasure trove of secrets that Nixon (and his predecessors) had sought to maintain also extended beyond the secret bombing of Cambodia, which had initially become public knowledge via a leak in the New York Times five years earlier and which was the subject of congressional hearings and part of Nixon’s proposed impeachment earlier that year.² Hersh had established his reputation as an investigative journalist by reporting on the covered-up massacre of Vietnamese civilians by U.S. Army soldiers at My Lai, but the scope of this new leak made My Lai’s savagery seem historically insignificant by comparison. Although Hersh did not receive the full Family Jewels from a single source, and his investigation had begun before Schlesinger had even commissioned their collection, his story provided a glimpse of the CIA’s secret history.³

Hersh’s reporting set in motion a series of events and political conflicts that culminated in unprecedented congressional investigations. The Church Committee in the Senate and the Pike Committee in the House of Representatives exposed an untold number of unknown or forgotten operations, programs, and events. The disclosure influenced elections, the intelligence community, and the media for at least the remainder of the decade. In the wake of the reports and with the vocal support of the press, Congress enacted legal checks on executive branch secrets and developed new institutional checks on the intelligence community.

Hersh’s role as an influential public figure—and especially the celebrity that attached to the Washington Post reporters who broke the Watergate story—inspired investigative reporting in the mainstream and emergent alternative press; soon, especially in the wake of the movie adaptation of All the President’s Men, the lone investigative journalist took on the role of folk hero. But, of course, the congressional investigations were not universally beloved; an increasingly prevalent counternarrative, which gained significant political traction during the Reagan presidency, viewed them as excessively critical and harmful to American national security by stripping the presidency of essential powers and prerogative, and especially by curbing the use of covert action.

For transparency advocates, as well as for those who warn about disclosure’s dangers, the Church and Pike committees continue to symbolize transparency’s importance and promise. The committees’ purpose was in large part prescriptive, and their prescriptions were in large part informational. To perform their essential constitutional role, the committees concluded, Congress needed to investigate and disclose the CIA’s previously secret actions. The Church Committee’s final report on abuses by the intelligence agencies declared:

Abuse thrives on secrecy. Obviously, public disclosure of matters such as the names of intelligence agents or the technological details of collection methods is inappropriate. But in the field of intelligence, secrecy has been extended to inhibit review of the basic programs and practices themselves.

Those within the Executive branch and the Congress who would exercise their responsibilities wisely must be fully informed. The American public, as well, should know enough about intelligence activities to be able to apply its good sense to the underlying issues of policy and morality.

Knowledge is the key to control. Secrecy should no longer be allowed to shield the existence of constitutional, legal and moral problems from the scrutiny of all three branches of government or from the American people themselves.⁴

The Church Committee declared transparency’s basic premise: The public needs to learn about past and future abuses because ignorance of the government’s illegal actions threatens democratic ideals and allows government malfeasance. In doing so, it articulated a vision of democracy focused on making the state visible. It offered legal and institutional reforms that would lead the nation to meet that standard. The committee’s vision and programmatic reforms seem commonsensical—of course government transparency and an informed public are foundational democratic principles, and of course law is the tool for establishing and ensuring those principles.

The episode demonstrates the ongoing dynamics of transparency and secrecy in the United States: first, the disclosure of confidential state information; then, public outrage at both the substance of the information and its having been kept secret; followed by legal reform to solve the secrecy problem; and, later, the revelation of new scandalous covert actions in the teeth of these new reforms. Slightly more than a decade after the Church Committee, the news broke about the Reagan administration’s secret money channel to the Nicaraguan Contras via Iran in violation of federal law, beginning the cycle all over again.

Revelation, reaction, reform, retrenchment. This cycle began, as the following sections discuss, in the post–World War II era, when the American press, promoting the modern norms of independent, professional journalism, bridled at the expansion of the national security state during the Cold War and of government secrecy at the federal, state, and local levels.

Editors as Advocates: Press Freedom and Rights After World War II

The movement for open government had historical antecedents and contemporaries in the United States and elsewhere. If one views transparency advocacy as a subset of more general campaigns for good government, then it emerged in the United States during the Progressive era of the late nineteenth and early twentieth centuries, when a social and political movement led the charge for reforms to eradicate bureaucratic corruption, especially at the municipal level.⁵ Louis Brandeis’s famous claim that sunlight is “the best of disinfectants,” made as part of his campaign as a Progressive trustbuster, dates from this period.⁶

These efforts were themselves not the first to appear in the West; Anders Chydenius, a priest and legislator, led Sweden to adopt the first freedom of information law in 1766, although that law neither established a general public right to information, nor augured a significantly more open domestic state, nor inspired imitation abroad.⁷ But two decades before enactment of the Freedom of Information Act in the United States in 1966, few publicly advocated the public right to government information. Secrecy and its cure had not yet become the defining administrative issue it is today. And notably, Brandeis’s famous statement about sunlight focused on secrecy’s role in enabling large banking trusts to amass private power, rather than on the public’s right to view the state itself.

Free Press and Free Markets

In the period just prior to the U.S. entry into World War II, the mainstream American press was more concerned with its access to markets and news abroad than with government secrecy. When the war ended, the American wire services, which extended around the world to supply international and national news to local newspapers, faced journalistic and economic constraints in attempting both to collect news in other countries and to export their products around the world. A century earlier, a cartel of major European news agencies—which included Reuters (Great Britain), Agence Havas (France), and Wolff (Germany) as its original members—had divided the world among themselves for purposes of newsgathering. They conspired to respect territorial constraints for their individual businesses and to publish international news only from the cartel’s members.⁸

The U.S.-based Associated Press (AP) had joined the cartel in 1887 but later bridled at the cartel’s constraints on its newsgathering operations abroad. AP asserted that the cartel artificially limited its ability to expand its newsgathering into new territories. Its immediate concern was with its domestic competitor—the United Press agency (UP) (founded in 1907)—which was unconstrained by the cartel agreement.⁹ The AP found itself in an increasingly uncomfortable and disadvantageous role as junior member of a state-affiliated, anti-competitive cartel whose restraints on AP’s activities had come to cost more than the benefits they created.

The fascist governments that began to take over state-controlled presses produced propaganda that was decidedly uncomplimentary to the United Stat...

Índice

• Cover
• Copyright
• Title Page
• Dedication
• Contents
• Acknowledgments
• Introduction: The Transparent State We Want But Can’t Have
• Part I: Transparency, Secrecy, and the Dream of Information Control
• Part II: Disentangling the Cybernetic Dream
• Part III: The Failures of Information Control
• Conclusion: The West Wing, the West Wing, and Abandoning the Informational Fix
• Epilogue
• Notes
• Index