DC Thinks It Can Silence a New Snowden, But the Anti-Leak Hypocrisy is Backfiring
After Edward Snowden caught the US government with its pants down, you would think the keepers of this country's secrets might stand up for a little more transparency, not bend over backwards trying to control the message.
Instead, this week we found out the Most Transparent Administration in American History™ has implemented a new anti-press policy that would make Richard Nixon blush. National intelligence director James Clapper, the man caught lying to Congress from an "unauthorized" leak by Snowden, issued a directive to the employees of all 17 intelligence agencies barring all employees from any "unauthorized" contact with the press.
The underappreciated Steven Aftergood, of the Federation of American Scientists, first reported the story on his indispensable blog on government secrecy, but it was quickly picked up by major outlets under very ominous headlines. Even the Washington Post's editorial board, which once bizarrely called on its own reporters to stop the Snowden leaks that eventually led to the Post sharing the Pulitzer Prize, harshly criticized the new rules, writing that "Clapper's directive works in the opposite direction of what is needed" and "will lead to more isolation and suspicion."
Employees can now lose their jobs, security clearances and, essentially, their careers for "unauthorized" contact – even routine calls or Mayflower Hotel drinks about unclassified topics that couldn't possibly pose a threat to national security. That will inevitably leave journalists in the cold when trying to explain complex government policies, top-secret or not, especially since the official explanations so often leave a lot to be desired.
If you're an intelligence official, attempting to explain public policy to a journalist may now be tantamount to a crime. As Aftergood declared, "Henceforward, the only news about intelligence is to be authorized news." Instead of allowing the press to report the facts, the government is trying to build something resembling a propaganda machine.
Want an example of what our front-page, "authorized"-only news might look like from now on? Check out Just Security'sexcellent paragraph-by-paragraph annotation of the New York Times report this week on recent drone strikes in Yemen, where dozens of people have been killed. All we have are seemingly "authorized" but anonymous sources spouting the government's party line, with absolutely no way to back up their claims.
At the same time, the government is trying to cut off any protections journalists may have left from protecting any unauthorized sources that may slip through the cracks. On Friday, the Justice Department urged the US supreme court to reject New York Times reporter James Risen's petition to hear his important reporter's privilege case, which could force him to go to jail rather than give up his source.
But while the government is intent shutting down anything but its own PR campaign from permeating the day's news, a floodgate in the anti-leak plan simultaneously has opened up in another significant – but, again, underappreciated – case.
Thanks to an order from the Second Circuit Court of Appeals, the administration will finally be forced to make public one of its many secret legal opinions by the Justice Department's Office of Legal Counsel (OLC) justifying the extrajudicial killing of Americans overseas with drone strikes.
Why is the government being forced to come clean, after so long, on at least part of its covert assassination program?
Ironically, the three-judge panel cited, as a main reason to declassify the opinion, the Obama administration's own strategy of talking to the press about secret policy – the strategy that suits its own message. These kinds of "authorized" leaks are used for PR purposes, and they flow steadily and conveniently from the White House – including a 16-page white paper on the legal interpretation of drones strike dropped off to NBC News under pressure last year as a kind of unspoken trade-off for the full opinion.
The Times won the new Freedom of Information Act (FOIA) case on drones along with the ACLU, and the paper's editorial board called the administration's latest claims "self-serving and duplicitous," going on to say "the administration has shown itself to be more interested with its public relations crusade than with being open and honest with the American people about significant acts carried out in their name."
The truth-about-drones opinion has the potential to force the administration to come clean on a variety of policies, but don't expect them to do any of that anytime soon. This week, the OLC released a list of 2013 unclassified legal opinions to the Huffington Post's Ryan Reilly in response to his own FOIA request. The subjects of all but one were blacked out:
— Ryan J. Reilly (@ryanjreilly) April 24, 2014
You'll notice something over almost every blacked-out line in that photo: the b(5) exemption to the Freedom of Information Act, the bane of lawyers and FOIA nerds, which can more accurately be described as the "withhold it because we want to" exemption. It's been the subject to critical Congressional testimony and a blistering investigation from National Security Archive of the many times the government has used the exemption to black out embarrassing details, fraud or illegality – only to have the uncensored documents leak to the press, steadily and conveniently, at a later date.
It's an exemption that the Obama administration once promised to curtail. Like many of its promises, the government took the opposite route. In 2013, according to a recent study by the Associated Press, the Obama administration invoked the "withhold it because we want to" exemption a record 81,752 times.
But it's also one of the exemptions the Second Circuit rejected this week. Coupled withrecent court orders in recent Freedom of Information Act cases over NSA surveillance and the promising "magistrate's revolt", in which lower level judges rejecting the Justice Department's broad requests for data and calling for more transparency, it's possible the Snowden Effect has reached the judiciary, just as the executive branch tries to shut down any vestige of candor within its own secretiveranks.
Copyright 2014 The Guardian