The Federal Courts Bow Down, Abjectly, To The Secrecy Demands Of The National Security State

August 21, 2007

Re: The Federal Courts Bow Down, Abjectly, To
The Secrecy Demands Of The National Security State.

From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com


Dear Colleagues:

In case after case we see what little regard the federal judiciary has for truth, for honesty. Rather than invoke the “old fashioned” concept of the need for truth and honesty, the courts find reason after reason, in one field after another, for overriding these ancient human necessities. It makes no difference whether judges were, and were appointed by, Republicans or Democrats; the judges are all alike. Whether the field is national security, business crookedness, hide-the-truth privileges or anything else is no matter. Truth and honesty come in last. Indeed, often -- even usually -- they are not even mentioned. That is shocking, but is so.

One of the latest examples is a lawsuit regarding her memoir brought by Valerie Plame Wilson.

The problem began when Wilson wanted a waiver from the CIA allowing her to begin receiving her deferred annuity at a younger age than the normal minimum. In February 2006 the CIA wrote her a letter refusing to do this (on the ground that the minimum age is a statutory requirement that could not be waived). The letter stated her dates of service, dates nobody gainsays. The dates were not said to be classified. In fact, the whole letter was unclassified.

After Plame got the February 2006 letter, a Congressman introduced a “private bill,” in January 2007, that would allow her to receive her deferred annuity earlier than the statute otherwise allowed. The Congressman put a copy of the February 2006 letter refusing a waiver into the Congressional record in support of the need for the private bill. With certain exceptions not pertinent here, the version of the February 2006 letter placed in the Congressional record was identical to the original. It thus stated when Plame started at the CIA. After being placed in the Congressional Record, the letter became and remained publicly available on the internet on the Library of Congress’ website.

Three days after the letter was put in the Congressional Record, the CIA told Plame that the February letter contained (unidentified) classified information. They made her return it, and sent her back a version supposedly properly redacted to reflect classification. In essence they sent her back a largely blank page -- everything of substance on the page was redacted, except that the redacted letter did say she served from January 2002 to January 2006.

So, to recapitulate: The CIA first sent Plame an unclassified letter identifying her dates of service. That letter was public because it was put in the Congressional Record and on the internet. The CIA then claimed the information was confidential and redacted it although it was already in the Record and on the internet.

Meanwhile, Plame wanted to publish a memoir she had been writing. It gave her dates of service. In September 2006, she submitted the manuscript to the CIA for vetting, as required. The CIA said she could not disclose her dates of service prior to 2002 in the manuscript because that information is classified. Plame sued over this at the end of May 2007. The federal district court (i.e., a federal trial court judge) ruled against her on August 3, 2007. The judge, named Barbara Jones, who sits in New York City, said that because Plame’s dates of service prior to 2002 are classified, they cannot be published in her book. That they are already in the Congressional record and on the internet -- with nobody denying the veracity of those dates -- is irrelevant. The opinion did not mention any need or desire to liberate truth or honesty.

Now the fact is, of course, that whether Plame can put her dates of service prior to 2002 in her memoir would seem small potatoes in view of the fact that the (uncontested) information is already public. Maybe what she speaks of in the memoir would in some way be more understandable if her dates of service were in the memoir, but, on the other hand, maybe it would make no difference. The big noise from Winnetka, the important point, is that the (uncontested) information already is public, so that nothing of possibly serious consequence can be hidden by keeping the dates out of the memoir. The real importance of the judge’s decision, then, is not that she is keeping truth out of the public record. She is not doing so. The real importance is the attitude her opinion bespeaks towards classification and secrecy, an attitude that pervades the federal judiciary in other cases where it does keep important information from the public’s knowledge, and an attitude that pervades much of the country because of the national security state mentality that has become prevalent.

It is hard to imagine a judge, or any sensible person, saying that information which is not secret, but is widely public, must be kept secret. This is illogical, is a contradiction in terms, but is exactly what has happened here. And it happened here for two interrelated reasons plainly discernible from the very same parts of the opinion. One reason is that the judge has bought into and is furthering the national security state, the kind of state that is going to end up destroying this country. Second is that, because of this buy-in, the judge, like other federal judges, willingly accepts any bull manure, any crapola, put forth by the CIA to justify what it has done.

The essence of the judge’s excuses is this: The courts must bend over backwards to defer to the CIA -- must fall on their faces backwards to defer to it (to speak in physiological impossibilities) -- when it claims the release of information poses a risk to intelligence gathering. Here the dates of Plame’s service prior to 2002 were never declassified, and the CIA says an “official” acknowledgement of the dates of Plame’s service (presumably by permitting the dates to now be published in her book) would harm national security. Whereas in the absence of official acknowledgement, protection is provided because “the public [is left] to guess” whether the dates in the February 2006 letter are accurate. It is irrelevant that Plame argues that the government “cannot ‘plausibly deny’” the truth of the dates set forth in the February 2006 letter that is in the Congressional Record and on the internet (dates which, to reiterate, are uncontested).

That national security would be harmed is the burden of an affidavit submitted by a CIA official in (presumably differing) classified and unclassified versions, and the CIA official’s “explanation is reasonable.” Reading between the lines, one sort of gathers that the reason the affidavit supposedly is reasonable is that, if people abroad learn the official dates of Plame’s service, they may try to determine what secrets of their own may have been compromised by some association with Plame.

Also, ‘“face-saving may often be as important as substance’” in international affairs, so that “‘official confirmation’” of Plame’s dates of service “‘could have an adverse effect on our foreign relations.’” To prove this, the judge cited another case saying Khrushchev cancelled a summit meeting not because U-2’s had flown over the Soviet Union, which he knew, but because Eisenhower “‘had publicly admitted that he had approved the mission.’”

So there you have it. We must defer to the CIA. If it says information must be hidden, then it must remain classified even though it is open for all the world to know -- supposedly the world will be left guessing because of continuing classification, even though the information is already public and incontestable. Also, admitting what we’ve done -- i.e., speaking truth -- will cause serious problems. So we have to cover up truth and/or lie. Since we must defer to the CIA, if it says up is down or down is up, or that truth is falsity or falsity is truth, then the courts must say so too.

This is, of course, the mentality of a national security state (of a Nazi Germany or a Stalinist Russia) - - which is what we have become. Quite often this mentality of hiding the truth or lying won’t even work in the short run, and in the long run it will destroy the country because of mistakes fomented by secrecy and the twin that secrecy almost always lead to: lying. In the short run here, nobody is really left to guess about Plame’s dates of service, and you can bet your sweet bippy that, as soon as the information first became public, foreign nations and services that felt they might have been compromised began reviewing any mutual activities with which Plame was connected in order to determine the possible degree of compromise. That is what we do. Why would anyone think that foreigners would not do the same? Only the incompetent CIA and the German judges of the federal judiciary would act as if it were not true. (For an unrelieved blast at the incompetence of the CIA, read Tim Weiner’s recent book, “Legacy of Ashes”). The simple fact, as shown by the Khrushchev example, by the secret wars Nixon created in Laos and Cambodia, and even by the court’s statement that “Leaving the public to guess carries some degree of protection” (emphasis added), is that the only people who can be fooled are American citizens. Our enemies know what we are doing when we bomb them, or soon learn what we are doing, as when we engage in secret special ops against them or when their people who use certain financial channels get rolled up. It is the American people who don’t know what we are doing, or who are the last to learn. And, in the end, that is the only real purpose of foolish secrecy like not “officially” admitting Plame’s dates of service.

In the long run, in the greater scheme of things, secrecy, and the dishonesty it spawns, do little but create disaster. In Thine Alabaster Cities Gleam, and at times in this blog, it has been pointed out that virtually every societal and economic disaster has gestated in secrecy. The Bay of Pigs, Viet Nam, the bombing of Cambodia, and Laos, the savings and loan debacle, the Enron debacle and the associated economic disaster -- all of these were hatched in secrecy and associated lies. For practical purposes, so was the current war in Iraq.

It seems to me possible that a forthcoming book by a gentleman named Mark Gerstein is going to say things that will further impress this on the public consciousness. Recently Dan Ellsberg sent various people drafts of the Preface and the Afterword he wrote for the book. One gathers from them that secrecy was the nourishing womb of disasters right and left discussed by Gerstein. E.g., the Colombia and Challenger disasters, the Vioxx situation, Chernobyl, etc. (Ellsberg also mentions one of the kings of this genre: what the tobacco companies did.)

Ellsberg discusses a number of reasons why people keep things secret. Most involve self interest. But it is also true that disasters are enabled in a different way by secrecy: when information is not kept confidential, i.e., when it is not secret, when people learn of it, they start asking questions about the logic, rightness, feasibility, practicability, etc. of what is being planned or done. From these questions, from well placed objections, and from the debate the questions and objections spawn comes truth, and with truth comes avoidance of disaster and improvement of policy and action. This is a simple idea, one known for decades or hundreds or even thousands of years. But it is not one that gets credence in a national security state, nor one that the federal courts pay attention to or even mention when the executive makes its nigh ever present claim of national security, state secrets or executive privilege. The ridiculous opinion of Judge Jones, though meaningless in practical terms because the dates of Plame’s service are in fact public, illustrates the courts’ abject bowing down to executive claims of national security and willingness to try to suppress truth. And the fact that Judge Jones’ absurdity was perpetrated by a Clinton appointee shows that it matters little which party a judge’s appointing President comes from.*


*This posting represents the personal views of Lawrence R. Velvel. If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com. All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law. If you wish your comment to remain private, you can email me at Velvel@mslaw.edu.

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