As we approach the tenth anniversary of 9/11, Brennan Center counsel Emily Berman and Seton Hall Law Professor Jonathan Hafetz discuss the President’s detention policy, the Bagram prison in Afghanistan, and the future of habeas corpus.
This is the third installment in a three-part series. You can read the first two conversations here and here.
We hear much less about detention operations in Afghanistan than we do about Guantanamo, but there are still thousandsof detainees in military custody in and around Bagram.
Moreover, rumors about a secret Bagram prison — one where detainees are held in isolation and that is off limits even to the Red Cross — persist.
What do we know about the state of American detention operations in Afghanistan, and what opportunities those detainees have to challenge the lawfulness of their detention?
--Emily Berman
Bagram has always played second fiddle to Guantanamo in terms of focusing public attention on human rights abuses by the U.S. Government — even though, for many years, conditions at Bagram were worse.
Congress's current proposal requiring the military detention of terrorism suspects goes beyond anything it has done so far, and represents an unprecedented militarization of the U.S. justice system.
Currently, there are many more prisoners at Bagram than Guantanamo, and some detainees at Bagram are held in secret — at least for limited periods of time. While conditions at Bagram, now known as Parwan, have improved, serious problems remain. Most importantly, detainees there are imprisoned without access to any court, whether U.S. or Afghan. Although the U.S. Supreme Court has recognized a constitutional right to habeas corpus review for detainees at Guantanamo, the Court has not extended that right to detainees at Bagram, and an appellate court has expressly rejected any such right. That Bagram is located in Afghanistan, where the U.S. remains involved in an armed conflict, admittedly complicates court review. But the alternative — holding prisoners at Bagram indefinitely based only on a military tribunal hearing — is worse.
The arguments for habeas review at Bagram will grow stronger if, as I suspect, the U.S. continues to hold at least some prisoners there even after troops withdraw and detention operations are turned over to the Afghan government. The continued detention of prisoners under these circumstances will make it more difficult to argue that Bagram is different from Guantanamo in any meaningful respect.
--Jonathan Hafetz
Another complaint, voiced by Republican lawmakers in the letter to President Obama raising questions about Warsame’s treatment, is that the administration’s actions “directly contradict pending legislation.” The pending legislation they refer to is the House version of the National Defense Authorization Act for FY 2012, which includes multiple restrictions on and requirements for the executive’s handling of suspected terrorists. Perhaps the most dramatic of these provisions requires that certain terror suspects be held in military detention and tried in military courts, rather than being held by U.S. law enforcement entities and tried in criminal courts.
For a moment let’s leave aside the fact that the current Senate version of this bill does not include that provision, as well as the fact that the content of this “pending legislation” is likely to change before it reaches the President’s desk for signature. But regardless of whether this particular military-detention requirement is actually enacted, Congress has already imposed similar conditions. For example, there are restrictions regarding where and under what conditions the President may transfer detainees from Guantanamo, as well as restrictions on using Defense Department dollars to convert facilities on the U.S. mainland into terrorist detention centers.
For many years, it seemed that Congress sat on the sidelines when it came to detention issues. What do you think about the ways in which it has decided to step in?
--Berman
Other than passing the broadly worded Authorization for Use of Military Force just days after 9/11, Congress did little on detention issues until 2005. Since then, Congress has intervened several times, mostly in counter-productive, even destructive ways.
In 2005, and again in 2006, Congress sought to strip the federal courts of jurisdiction to consider the habeas petitions of Guantanamo detainees — an effort the Supreme Court ultimately ruled unconstitutional.
Ten years after 9/11, we can see how much the policies underlying Guantanamo not only are becoming normalized, but also are expanding in new and radical directions.
More recently, Congress effectively killed Obama's plan to close Guantanamo, by prohibiting the use of funds to transfer Guantanamo detainees to the mainland United States, as well as restricting the president's ability to transfer Guantanamo detainees to another country.
The current proposal requiring the military detention of terrorism suspects goes beyond anything Congress has done so far, and represents an unprecedented militarization of the U.S. justice system. It's bad enough that the government need not prosecute terrorism suspects and provide individuals in U.S. Custody with a fair trial. This proposal would actually prevent the president from doing so in many cases.
Congress's actions underscore the degree to which the debate over counter-terrorism policy has been distorted by fear and hijacked by political grandstanding. Ten years after 9/11, we can see how much the policies underlying Guantanamo not only are becoming normalized, but also are expanding in new and radical directions.
--Hafetz
That point brings me to my last question, Jon. As we approach the tenth anniversary of 9/11, it seems that many of the rules surrounding habeas — where geographically does it extend, what categories of individuals may lawfully be detained, how definitively must the government prove a particular detainee’s connection to Al Qaeda or its affiliates — remain unanswered.
And this past term, the Supreme Court declined to exercise jurisdiction over any of the multiple detention-related cases that came before it. So the Court seems to have stepped out of the detention business, at least for the moment. At the same time, the situation in the world is getting more complicated. Afghanistan is less likely to serve as a terrorist base of operations, but other failed states like Somalia and Yemen seem to be vying to take its place. Al Qaeda proper seems to be in decline, but affiliated or copycat groups interested in attacking U.S. interests continue to pop up.
As this complexity evolves, and in the absence of clear rules set forth by the Supreme Court, where do you think the future of habeas corpus is headed, and who is going to be writing the rules?
--Berman
It does seem like we're entering a new chapter in the future of habeas corpus, with the tragic events of 9/11 now almost a decade behind us. While the legal battles in the "war on terror" have not always produced clear answers, and many important issues remain to be decided, I think several important lessons emerge.
Habeas, I believe, will remain relevant as we begin to focus on new questions, such as counter-terrorism operations in the Horn of Africa and Yemen. Despite its numerous shortcomings, habeas has proven one of the most important checks on executive power. It helped expose abuses at Guantanamo, enabled lawyers to visit the base and represent detainees, and provided some judicial oversight of what once had been a prison beyond the law.
At the same time, the "war on terror" litigation has underscored the vulnerabilities of habeas and the limits of courts generally. Too often, it seems, the executive was able to remain one step ahead of the “Great Writ,” evading accountability by transferring prisoners to new detention sites to which habeas did not extend or using other countries as proxies to mask U.S. control and influence. Judges, moreover, have too often interpreted the habeas right narrowly and deferred excessively to the government. We can see this in the D.C. Circuit's recent rulings in the Guantanamo habeas cases, which sometimes seem little more than an exercise in rubber stamping executive power.
As we approach the tenth anniversary of 9/11, Brennan Center counsel Emily Berman and Seton Hall Law Professor Jonathan Hafetz discuss the President’s detention policy, the Warsame case, and whether we can hold the government accountable for deprivations of liberty.
This is the second installment in a three-part series. You can read the first conversation here.
There was a fascinating story in The Nation last month, reporting about a facility in Mogadishu, Somalia, where the CIA seems to be operating a semi-autonomous detention program in conjunction with Somali intelligence. According to The Nation, “the underground prison is officially run” by the Somali’s national security agency, but “US intelligence personnel pay the salaries of [Somali] intelligence agents and also directly interrogate prisoners.”
Is there any way to hold the government accountable for these deprivations of liberty?
One question these last twostories raise for me — and I’ll want to come back to this — is whether the current administration has a coherent detention policy, or if it’s operating on an ad hoc basis, and whether that’s a good or a bad thing.
But first, I’d like to ask you whether the writ of habeas corpus provides any protection from unlawful detention for prisoners like Ahmed Abdulkadir Warsame or the ones in Mogadishu? And if not, is there any way to hold the government accountable for these deprivations of liberty?
--Emily Berman
The facility highlights the problem of proxy detention — where the U.S. outsources detention to foreign agents or colludes with those agents in order to minimize accountability.
The practice of proxy detention is not new. (In fact, along with the ACLU, I presently represent a U.S. citizen named Amir Meshal in a lawsuit against four U.S. officials who used foreign agents in Kenya, Somalia, and Ethiopia, to imprison him for four months in 2007 without access to his family or the courts).
The story about the facility in Mogadishu highlights both the importance and potential limits of habeas corpus. It underscores why habeas must be available to challenge all detentions by the United States, regardless of location, and why the habeas right must be viewed broadly to reach situations where the U.S. exercises custody or control over a prisoner indirectly, through a foreign agent.
Obama's approach elevates executive discretion over the rule of law.
A district judge in Washington, D.C. previously construed habeas corpus to reach this type of detention (The case, which involved a proxy detention in Saudi Arabia, is entitled Abu Ali v. Ashcroft). While Abu Ali was an American citizen, the habeas right to challenge illegal detention should extend both to citizens and foreign nationals. Indeed, the Supreme Court's 2008 Boumediene v. Bushdecision, which recognized Guantanamo detainees' constitutional right to habeas corpus, emphasizes that citizenship is only one of many factors involved in determining whether habeas should be available to a person held overseas.
One recurring problem is that it can be difficult in practice to establish the requisite level of U.S. control over detention for the purposes of establishing habeas corpus jurisdiction, while judges can be reluctant to order discovery into the degree of U.S. control when a prisoner is nominally in foreign custody. However, the danger of precluding such discovery outweighs any difficulties it poses, as it effectively permits the U.S. to interrogate and imprison individuals without accountability or review — precisely the kind of situation where the worst abuses tend to occur.
--Jonathan Hafetz
I want to briefly go back to the Warsame case — the Somali detainee held and interrogated for two months on a navy ship and then brought to the U.S. for prosecution. You’ve probably seen the letter that several congressional Republicans sent to President Obama protesting the way that Warsame was handled. The letter criticizes the President for failing to establish a “comprehensive detention system” outside of Afghanistan and calls on the President to define his administration’s policies on interrogation, detention, and prosecution of terrorists.
Do you think this administration has a coherent policy for dealing with suspected terrorists?
--Berman
President Obama's approach to detention does, to be sure, suffer from a lack of consistency. While Obama has expressed a general preference for prosecuting terrorism cases in federal court, he has maintained the option to treat terrorism suspects militarily — by subjecting them to indefinite detention under the laws of war or prosecuting them in military commissions. In Warsame's case, exercising that option meant two months' of military detention followed by a federal criminal indictment. For others, including those at Guantanamo, it has meant perpetual confinement without trial or prosecutions in a second-class military justice system.
Obama's approach, as I've previously discussed here, gives far too much power to the government to circumvent or dispense with the fundamental constitutional protections provided in the federal criminal justice system. Who receives a federal trial? Who, by contrast, is subjected to the military regime of law-of-war detention or commission prosecution? Obama's approach allows the government to exercise the military option when it lacks evidence, when the evidence is tainted (for example, because it was obtained through torture or other illicit means), or even when the case is too difficult politically to prosecute in federal court (as illustrated by the administration's decision to abandon the prosecution of KSM and the other 9/11 co-conspirators in the face of a virulent political backlash).
Obama's approach, in short, elevates executive discretion over the rule of law. It is, however, certainly preferable to the approach of those lawmakers who would mandate military detention, thus barring the prosecution of Warsame and countless other suspects.
Congress once again extended expiring provisions of the Patriot Act with very little debate. Perhaps they don't need to debate this law. After all, 10 years after its initial passage, lawmakers and voters should know what the statute says and whether they support its continued use, right? Wrong.
Turns out, it may not say what we think it says. According to members of the Senate Intelligence Committee — whose committee service means they have access to more information than the American people, and even many of their colleagues — "there is a significant discrepancy between what most people — including many Members of Congress — think the Patriot Act allows the government to do and what government officials secretly believe the Patriot Act allows them to do."
According to Senators Ron Wyden (D-Or.) and Mark Udall (D-Co.), there are two versions of the Patriot Act — one that the public sees, and a more permissive one that the government keeps to itself. The existence of this secret law means that "Congress and the public are prevented from having an informed, open debate on the Patriot Act." In fact, many members of Congress "have not even seen the secret legal interpretations that the executive branch is currently relying on," according to the senators.
We've heard this song before. Justice Department memos released in 2004 and 2009 revealed that the executive branch did not consider conduct that most people would call torture to be prohibited by the laws outlawing torture. But since the executive gave the word "torture" a secret definition — i.e., that it applied only to techniques that caused the kind of pain felt during organ failure or death — public statements by government officials announcing that "the United States does not torture" proved, at the least, misleading.
But secret (and creative) interpretations of the law are not exclusive to torture. We've seen the same thing with the Patriot Act in the past, according to congressional overseers. In 2009, former Senator Russ Feingold said there "is information about the use of [surveillance authority] that I believe Congress and the American people deserve to know." Instead, "critical information about the implementation of the Patriot Act" that "would have a significant impact on the debate" has not been made public.
As the saying goes, fool me once, shame on you; fool me twice, shame on me. But what if even twice isn't enough to drive home the lesson?
To be sure, surveillance abuses may seem less egregious than torture. But the damage to democratic principles resulting from secret law is the same. There is no principle more fundamental to the design of our Republic than the idea that voters can ratify or reject decisions that elected officials make on their behalf. Absent information about the content of these decisions, the electorate can neither ensure accountability for foolish or unlawful policies nor make informed electoral decisions.
There is a pattern here that the American people ignore at their peril: extending broad powers to the executive branch, which are wielded in secret and which congressional overseers are barred from discussing with their constituency, leads — when pressure on government officials is strong enough — to excess. The very existence of laws and regulations limiting government surveillance authority recognizes this truth. These rules were designed to do away with a world in which the intelligence community had free rein to run rampant over the private lives of Americans. And the key to these rules is adequate oversight to ensure their proper implementation.
Over the past decade, however, we have allowed the intelligence community to implement surveillance laws with minimal oversight. As a consequence, executive branch officials are free to interpret their authority expansively, content in the knowledge that they likely will not be asked to justify the full scope of their actions to the pesky electorate. Congress should have taken advantage of the Patriot Act sunset to insist on more robust oversight of these powers. Instead, it extended the expiring provisions for another four years.
The chair of the Senate intelligence committee has agreed to pursue the issue of secret executive branch memos interpreting the Patriot Act and to make changes in the law if necessary. This is a critical first step. The American people deserve to hear a real debate about what government surveillance programs are really doing in their name. Only then can we make an informed, responsible decision about whether the claimed security benefits of those programs justify their costs.
Conventional wisdom took a hit yesterday as 26 Republicans broke rank in the House to help defeat the reauthorization of three expiring Patriot Act provisions. Like Guantánamo, the Patriot Act was once generally understood to be a symbol of government overreaching in the so-called “war on terror”—and, also like Guantánamo, it underwent an improbable rehabilitation at the hands of the conservative spin machine. It was widely expected to garner the necessary two-thirds majority in the House. But something happened to derail that train.
According to the new conventional wisdom, the Tea Party is what happened. The Washington Post describes the vote as “the first small uprising of the party’s tea-party bloc.” The Washington Times dispensed with such nuance, describing it as a Tea Party “revolt.”
But is that really a fair assessment? Certainly, if the Tea Party means what it says about limited government and fidelity to the Constitution, it should be against a straight reauthorization of these provisions. The so-called “library records provision” allows the FBI to obtain “any tangible thing” from a third party (library records have become the provision’s poster child) by merely attesting to a secret court that the item is “relevant” to an ongoing terrorism investigation. Under the “roving wiretap” provision, the government can get a secret court order to wiretap an unlimited number of communications devices a suspect may be using, without identifying the devices or even the suspect to the court. And the so-called “lone wolf” provision amends the statutory definition of “agent of a foreign power” to include people who are nothing of the kind. (The Brennan Center’s Emily Berman has said more about these problems in the pages of Roll Call.)
But it’s not clear whether the Tea Party has in fact gotten the memo. As Adam Serwer blogs on the Washington Post, 26 Republicans voted against reauthorization—but there are 52 members of the Republican Tea Party Caucus, most of whom voted for reauthorization. Only eight freshmen members voted no. That’s hardly a “revolt.”
Call me a glass-half-empty kind of person, but the real story behind last night’s vote is who voted for the reauthorization. If the Republicans appeared divided, the Democrats were even more so, with 67 voting yes and 122 voting no. That’s not a surprise, but it’s not good news, either, since Republicans can bring the legislation back to the floor under different rules that require only a majority vote.
And these pro-Patriot Act Democrats will have plenty of company in the Senate and the White House. Senator Leahy introduced a version of the reauthorization containing somewhat enhanced civil liberties protections, but in Serwer’s words, “those modest reforms were too much for Sen. Dianne Feinstein (D-Calif.), so she introduced an alternate bill without them.” And in a repeat performance of the late 2009 reauthorization debates, the Obama administration has determined that we can’t afford civil liberties and is supporting reauthorization—albeit with a 2013 sunset. So despite the initially encouraging vote last night, it seems we may be stuck with the Patriot Act for a while longer.
Last month, the Supreme Court handed down a 9-0 ruling in Carachuri-Rosendo v. Holder, clarifying the definition of an "aggravated felony" for purposes of the Immigration and Nationality Act (INA). The Court held that although Carachuri-Rosendo could have been charged with a federal felony, the mere possibility of such charges does not constitute a conviction for an "aggravated felony." The government must actually obtain a conviction before imposing a punishment or seeking automatic deportation premised on that conviction. It is a shocking feature of U.S. immigration law that such an obvious-seeming point needed any clarification.
Jose Carachuri-Rosendo is a legal resident who has lived in the U.S. since age 5. Following a 10-day sentence for the unauthorized possession of a single Xanax pill, federal immigration officials placed Carachuri-Rosendo into automatic deportation. His only prior conviction involved a 20-day sentence for the possession of less than two ounces of marijuana. Despite the fact that Carachuri-Rosendo had never been convicted of a felony or of any federal crime, the federal government attempted to characterize his second 10-day state prison sentence as an “aggravated felony”—a determination that authorized automatic deportation.
The possibility that such a minor offense could result in a harshly disproportionate punishment like deportation is not the most frightening aspect of this case. More troubling is the government's stance that “conduct punishable as a felony” should be treated the same as an actual felony conviction. This “hypothetical federal felony approach,” as the Court called it, would have allowed misdemeanors, state convictions, and other minor offenses to be treated as federal felonies for the purposes of immigration law. Such an outrageous denial of due process is something we would not tolerate in any other area of law.
The Court unanimously rejected this hypothetical felony approach in clarifying the definition of "aggravated felony." As Justice Stevens wrote for the unanimous Court, “We do not usually think of a 10-day sentence for the unauthorized possession of a trivial amount of a prescription drug as an ‘aggravated felony.’”
Unfortunately, the problem of punishing immigrants based on hypothetical offenses is still possible under other INA provisions not immediately addressed by this ruling. Immigration and Customs Enforcement (ICE), for example, has relied on the same hypothetical approach in pursuing "criminal aliens" eligible for detention and deportation. Under the INA, the term "criminal alien" includes any legal or illegal immigrant who has committed a "crime of moral turpitude" or any crime “for which a sentence of one year or longer may be imposed.”
Several ICE initiatives, such as 287(g), the Criminal Alien Program (CAP), and Secure Communities, have targeted criminal aliens by building partnerships between ICE and local law enforcement agencies. Through these initiatives, ICE receives information about immigrants who are booked by local police or held in state and local correctional facilities. These initiatives purport to target dangerous "criminal aliens" before they can be rereleased into the American public. However, there is growing evidence that ICE is using these programs to detain and deport far more than just dangerous criminal aliens.
Language in the INA authorizes ICE deportation of anyone "convicted of a crime for which a sentence of one year or longer may be imposed.” Using essentially the same hypothetical approach that the Court invalidated in Carachuri-Rosendo, ICE is treating misdemeanors as felonies for the purposes of immigration law. The actual sentence a defendant receives is not important so long as a longer sentence could have been imposed. A petty offender sentenced to 10 days for possessing an unauthorized prescription drug can still be pulled into immigration detention or deportation, merely because a larger sentence was available.
ICE has taken its authority to deport criminal aliens and used it to gather information about all immigrants passing through state and local police custody. Studies of ICE enforcement under 287(g), CAP, and Secure Communities indicate that even immigrants who are acquitted or whose charges are ultimately dropped are often targeted for detention or deportation. A study of CAP by the Warren Institute at UC Berkeley Law School found that in Irving, Texas that 98% of ICE detainers were issued against individuals charged with misdemeanor offenses.
These initiatives are meant to remove dangerous criminal aliens, not petty offenders or any immigrant who has contact with a police office. As former NYC District Attorney Robert Morgenthau noted in a recent article for the Wall Street Journal, current ICE practices make immigrants less willing to report crimes and risk destroying trust between the police and immigrant communities.
The Carachuri-Rosendo decision should encourage ICE and DHS to rethink the way they go about apprehending criminal aliens. Enforcing federal immigration laws, particularly against violent criminals, is important to the continued security of the country. But we should not be sacrificing our commitment to the rule of law in order to achieve that objective. It diminishes our nation to treat non-felons as felons and to punish non-criminals as criminals simply because the people involved were born outside the United States.
This listserv is a forum for policy advocates, civil legal aid attorneys, and others interested in contributing to efforts to fix the restrictions on LSC-funded legal services organizations.These restrictions unfairly hurt low-income families and undermine our nation’s promise of equal justice.
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To post a message to the listserv, simply send an e-mail to legal_services_working_group@googlegroups.com.If you are having any problems with the Listserv, please contact Neeta Pal at Nabanita.Pal@nyu.edu.We look forward to reading your posts!
Last month, experts ranging from government officials engaged in the fight against terrorism to Ivy League historians assembled at The New School in New York to discuss what secrets a democracy should keep. That question – vexing to any nation that values both popular knowledge about government affairs and the advantages that some secrets bring – remained unanswered as the conference adjourned. The day’s success lay not in any particular resolution but in the lively debate and important questions that the conference, titled “Limiting Knowledge in a Democracy,” provoked.
American secrecy is as old as American democracy, and even the Framers drafted the Constitution behind closed doors. However, throughout the 20th and into the 21st Century, the executive has grown in size, scope, and power. The Cold War and the advent of the modern intelligence apparatus -- including the CIA and NSA, and covert operations -- have entrenched secrecy. The 9/11 attacks led to the George W. Bush administration’s use of warrantless surveillance and interrogation through torture as counterterrorism strategy, while keeping the programs secret.
The struggle between the public’s right to know and the government’s need for secrecy did not begin with the Bush administration. Nor will it end with the current one. The reasoning is simple—the incentives for those who control information to keep it secret are often stronger than incentives to disclose it. The current administration has committed itself to openness and transparency—on President Obama’s second day in office, he issued two executive memoranda calling for executive departments and agencies to commit to “creating an unprecedented level of openness.” But actions taken to live up to this commitment have been inconsistent throughout executive branch. Even now, the press reports that President Obama will issue classified guidelines about which detainees in Guantanamo Bay and elsewhere can be indefinitely detained without charge or trial.
The conference neither solved the problem of secret-keeping in democracy, nor did its participants reach a uniform conclusion. They did, however, agree on at least two things: Some secrets are best kept that way, and other secrets are needless. A few of the day’s highlights are illustrated below.
Peter Galison, a Harvard historian, said that 9/11 changed everything. He is critical of the overuse of classification by the government because the 9/11 attacks catalyzed a notion that everything in the United States is a terrorist target. If everything is a terrorist target, he suggested, then the government can claim that everything is a secret.
Nicholas Lemann and Eric Lichtblau discussed the role that media played in preserving and disclosing secrets after 9/11. According to Lemann, who is the Dean of Columbia University’s Graduate School of Journalism, journalists recognize only two categories of necessary secrets: individual privacy and national security. He said the profession tends to publish any material that is outside these two realms, though many journalists contest the notion that information the government labels national security is off limits or not publishable.
Litchblau, a New York Times reporter who broke the 2005 story about George W. Bush’s warrantless wiretapping program, asserted that after 9/11, the United States witnessed one of the severest limits on public information due to government concerns over national security. His notion exemplifies journalists’ reservations about accepting the government’s secrecy label. Litchblau pointed out that the media itself actually played a role in the increased secrecy of the post-9/11 era. Publication of his wiretapping story was delayed for more than a year because the government claimed that making the information public would harm national security. Whereas Lemann, in a previous panel, had suggested that journalists should publish any information they have access to that is not related to personal privacy or national security, Litchblau illustrated the trickiness of determining what information the public needs to know and what information might actually compromise national security if published.
“There can be good secrets,” proposed David D. Aufhauser, a former general counsel at the Treasury Department during the Bush administration. Aufhauser, who headed the National Security Council’s committee on terrorist financing and was a self-described “spy” on financial links to terrorism, was more sympathetic to the government’s use of classification and intelligence-gathering techniques. His sentiment toward classification, although it contested Lemann’s notion that journalism publish almost any information it can gather, is not unique. Galison also suggested that the public need not know everything about the government. The public should know, he said, that nuclear weapons exist, but they do not need to know how to make them.
“An informed public makes the difference between mob rule and democratic government,” wrote Rep. William L. Dawson in 1955. His thought might also sum up the theme for the “Limiting Knowledge in a Democracy” conference. It is well-accepted that democracy implies openness, but the level of openness required for a free, functioning democracy is disputed. The conference continued the debate, but it made clear that the debate will persist far beyond the conference’s end.
Got a plan to open up government? The president wants to give you a prize. A new memo from the Office of Management and Budget says federal agencies should hand out awards to those who come up with ideas to roll back government secrecy. Similar contests, says the memo, brought fresh thinking on such things as lunar landers, space elevators and astronaut gloves.
President Barack Obama should be commended for encouraging open government. But while prizes may spur innovation, we need sticks as well as carrots to reduce government secrecy. Any meaningful reform must include a vital element that has been lacking for decades: consequences for those who wrongly hide information from the public. In particular, consequences would limit needless classification of documents by curbing overuse of the “SECRET” and “TOP SECRET” stamps.
In December, Obama replaced the Bush administration’s executive order on the classification and declassification of documents with one of his own. Now, the government cannot classify a document if “significant doubt” exists about the need to hide it, and “no information may remain classified indefinitely.” Obama ordered agencies to review their policies on secret documents. These are important steps in the direction of reform.
But Obama did not touch the part of the Bush order called “Sanctions,” nor did he require officials to supply reasons for classifying documents. Government employees can still block disclosure merely by invoking talismanic categories, like “foreign government information.”
The incentives remain skewed toward secrecy. Officials risk little when they classify documents. Some do so to avoid embarrassment. The Bush administration, for example, classified Gen. Antonio Taguba’s chilling report on Abu Ghraib, and thus kept the public in the dark about acts of torture. Others veil records because they fear reprimand for revealing too much, but not for concealing too much. And officials sometimes find it easier to conceal entire documents — including pages of harmless information — rather than spend time segregating the sensitive parts from the non-sensitive ones. All of this feeds massive over-classification. Experts of all political stripes say nine in 10 secret documents should not be classified.
Pointless secrets threaten our safety by blocking the flow of information within government. It is important to protect the privacy of law-abiding Americans. But information about true threats to security must be available to the appropriate governmental officials. As the 9/11 commission warned, excessive secrecy stymies information exchange between federal agencies and makes it harder to connect the dots.
What’s more, secrecy keeps voters in the dark. The Bush administration held on to classified Justice Department memos that signed off on waterboarding and other forms of torture. A classified program shunted people off to secret prisons in foreign countries, where they suffered even more brutal interrogations. A classified program let the government spy on phone calls without warrants. Government by the people can exist only if the people know what their government is doing, but the “top secret” stamp has become a tool of closed institutions.
There is a better way. First, officials should be required to justify their use of secrecy. To accept a stock phrase like “foreign government information” is to enable lazy thinking and a system of classification by default. By contrast, people compelled to detail in writing their reasons for classifying documents must think through — and justify — their choices. At times, the very act of trying to articulate a reason would convince an official that the reason was not powerful enough to warrant hiding information.
Second, there should be a system in place to audit the classifiers and impose consequences where necessary. Those who secrete papers away without sufficient reason must face discipline — training or a note in their personnel file at first, but in extreme or recurring cases, revocation of their classification authority or even dismissal.
The window for change remains open — an executive branch office must still issue a directive to implement Obama’s order. As reform moves ahead, the administration should bear in mind the words of the 9/11 commission, which concluded that the lack of consequences for excessive secrecy left us exposed to attack: “There are no punishments for not sharing information.”
The New York Timesrecently reported that Dawn Johnsen, President Obama’s nominee to head the Justice Department’s Office of Legal Counsel, has withdrawn her bid for confirmation. Her candidacy languished for more than a year as senators refused to bring her nomination to a vote. (The Times also lamented her withdrawal today.)
Johnsen’s withdrawal represents a blow to the rule of law. Congressional opposition to her confirmation is based on the very same attributes that make Johnsen the right person for the job—her concerns about the role the Office of Legal Counsel played in developing the Bush administration’s detainee interrogation policies and her commitment to ensuring that the Justice Department provide the executive branch with nothing but accurate, impartial legal advice.
Small and—at least until recently—relatively anonymous, the Office of Legal Counsel in the Department of Justice is one of the most important offices in government. It guides the executive branch in interpreting and applying the law, guidance that can have a profound impact on executive policies and, as a consequence, on the actions our government takes.
In performing its task, OLC is responsible for producing accurate assessments of the law. And it has had a proud history of doing just that with integrity and independence. But by all accounts, OLC abandoned this tradition at times under the previous administration. Operating more as a political arm of the White House, the office provided a legal justification for the administration’s policies regardless of what the law actually required. A recent investigation in the Justice Department highlighted flaws in the work the OLC attorneys under President Bush who authored the so-called Torture Memos, ultimately concluding that these attorneys displayed poor judgment and a lack of balanced analysis—not the high professional standards that historically define the office’s work.
Recognizing the need to repair the damage done to OLC, President Obama nominated Johnsen, a superbly qualified lawyer and scholar, to head the office. As a law professor, Johnsen’s writings focus on the core constitutional issues addressed by OLC. An OLC attorney herself for several years, she even ran the office for a two-year period under President Clinton. Johnsen’s stewardship won her wide respect inside and outside the Justice Department, and former colleagues have come forward in droves to sing her praises.
Johnsen is also a voice for implementing the reforms necessary to restore OLC’s commitment to careful, balanced analysis. Along with several other former OLC officials, she co-authored a statement of principles to guide the office, including such basic notions as “OLC should provide an accurate and honest appraisal of applicable law” and “OLC advice should reflect due respect for the constitutional views of the courts and Congress (as well as the President).” Johnsen lamented OLC’s transformation into a rubber stamp and the shoddy quality of some of its work. She strongly criticized OLC lawyers for manipulating the law to condone torture.
A few Senators pointed to Johnsen’s outrage as a ground for opposing her nomination. They argued that her condemnation of the torture memos and other OLC missteps betrays a lack of “requisite seriousness” for the position (to use the odd phrasing of Texas Senator John Cornyn) and a lack of commitment to fighting terrorism. And they objected to her defense of a woman’s right to choose.
But these reasons did not justify derailing Johnsen’s nomination. OLC’s mission is to ensure that the government adheres to the rule of law and Johnsen’s strong commitment to that mission was evidence of her fitness for the job. Moreover, the rule of law is not at odds with fighting terrorism but rather is among our nation’s strongest weapons in that fight. The battle for the hearts and minds of potential extremist recruits turns on the vitality of our values and on the vision of a country that will adhere to the rule of law in its letter and its spirit. We need a leader who understands this principle to restore OLC to the high standards that the office requires and deserves.
Obstructing the President’s nomination and leaving OLC without a confirmed leader for over a year has weakened the government in all the endeavors that require OLC’s involvement—including the fight against terrorism. Dawn Johnsen deserved an up or down vote in the Senate.
President Obama is unlikely to find another nominee as perfectly suited to this particular position, at this particular time in history. But now that Johnsen has withdrawn her name from contention, President Obama should move quickly to nominate someone who shares Johnsen’s commitment to the rule of law and to the integrity of OLC.
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