State of Secrets: Do You Have a Need to Know?

Andrew McCabe has not been charged with any crime… so far. But he lives in a world where innocence is a relative thing and people who have government jobs, like the one from which McCabe was recently fired, routinely carry insurance to cover the legal costs of dealing with special prosecutors. McCabe may not have signed up for one of those policies since he created a legal defense fund and in a few days, raised over half a million dollars in contributions. Which ought to be enough, one thinks, to keep an innocent man out of jail.

But maybe not.

McCabe, a career FBI man who had made it to the number two position in the hierarchy, was fired by the Attorney General for leaking sensitive information to the press and then denying that he’d done it.

Which causes one to think, Come on. Really.

After all, this happened in Washington, where the keeping — and leaking — of secrets is something between an industry and a religion and where it sometimes seems that what isn’t a secret isn’t worth knowing. As Robert Novak once said, “In Washington, you are either a source or a target.”

McCabe, it appears, was both.

According to one report in the Washington Post:

 … investigators found that McCabe had authorized the disclosure of information to the Wall Street Journal for an October 2016 story that examined feuding inside the FBI and Justice Department around the handling of a separate investigation into Clinton’s family foundation, two people familiar with the case said.

Those “two people familiar with the case” would be, in the jargon, “sources.” And when they shared their information with the Post, what they were doing was… leaking.

McCabe, for his part, doesn’t believe he has done anything to deserve his dismissal or that he should be ashamed of. In a statement defending himself, he insisted that the investigation into his conduct

… focused on information I chose to share with a reporter through my public affairs officer and a legal counselor. As Deputy Director, I was one of only a few people who had the authority to do that. It was not a secret, it took place over several days, and others, including the Director, were aware of the interaction with the reporter. It was the type of exchange with the media that the Deputy Director oversees several times per week.

To those of us who are not wise in the ways of Washington, McCabe appears to be saying that he was just doing his job and that one of his professional responsibilities was leaking to reporters. He thought there was information that needed to be made available to the public and he took steps to make it happen.

Fine, then. Everyone — with the possible exception of Facebook executives — is for “transparency” these days. Notionally, at any rate. But why not draw up a press release so the information would be made public but nobody would be on the hook for any favors they’d received. The next time the Wall Street Journal had a story about the FBI, its writers wouldn’t be tempted to spin it favorably in Mr. McCabe’s direction.

That, of course, is not the way it works. And, then, there is the question of just what was in it for the unidentified sources who gave the Post the formation it used in its story. Are we supposed to believe that the leakers were motivated by a love of truth?

In Washington?

The Post story doesn’t say anything about the leaked information being officially “classified.” Maybe it was and, then, maybe it wasn’t. This is a distinction that is increasingly blurred.

All sorts of information is classified and the volume is astounding. According to a news item published in Bloomberg, in 2016, the government spent $16.89 billion “… to classify information that it deems too sensitive to be released to the public.”

That sounds like a lot of “sensitive” material and one wonders just how much of it was kept secret so our enemies wouldn’t get ahold of it and how much to avoid embarrassment. Because there are some things the citizens just don’t need to know.

Why, you ask, is that?

Answer: none of your business.

Consider the assassination of John F. Kennedy, which occurred 55 years ago. What the various government agencies have learned about that event should, it seems, be made available to the public. Whatever embarrassment and shame the release of the information might cause, it can’t be worse than the suspicions and paranoia engendered by keeping it secret. And, in fact, there is a law requiring the information be made public. Something called the Assassination Records Collection Act of 1992 which set a deadline of October 26, 2017 for total declassification and release.

There was, of course, a catch. The president had the authority to extend the deadline. For national security reasons, of course. So while President Trump authorized the release of 2,800 documents, some 30,000 others were, according to the Washington Post, withheld after “… he bowed to pressure from the CIA, FBI and other agencies.”

While the concept of “national security” might be stretched far enough to cover that case, it could not possibly apply — could it? — in the matter of payoffs to victims of sexual harassment on Capitol Hill. In that case, the amount of the payoffs was made public — $17 million — but not the identities of the people who did the harassing. Leaving taxpayers who shelled out the hush money to wonder just whose sins they were subsidizing. There may not have been any issues of “national security,” but the information was kept secret, just the same. Secrecy might be the default condition in bureaucratic Washington.

There is, for instance, the matter of Lois Lerner who presided over a division of the Internal Revenue Service that found ways to make life — and tax exempt status — difficult for organizations whose politics were not acceptable to her. After the harassment had been exposed, the government apologized and compensated the offended parties with public money. Ms. Lerner refused to testify to a congressional committee, taking the 5th. And her grand jury testimony has been kept secret. Seems, then, that the IRS is permitted to know a lot about you while you are allowed to know almost nothing about it. This confirms a sort of broad rule about government secrecy. We will tell you what we think you need to know. And we will decide what we want to know about you.

The government has its reasons and among the most obvious is that it doesn’t like being embarrassed. Consider the case of the Pentagon Papers, the nearly ideal secrecy story in our times.

The puzzling thing about that episode which was so consequential is… why? The publication of the Pentagon Papers could fairly be called the beginning of Richard Nixon’s end. But he didn’t seem bothered on the first day of their publication. Seems, in fact, to have barely noticed. And when he did, he recognized that any political damage would not be inflicted on him. The decisions and events covered in the papers ended in 1968, before he was elected.

What set him off on the road that would lead to his destruction was the effrontery of the thing. Those were government secrets even if their release would compromise no ongoing operations and put no Americans at risk. It was the embarrassment of the thing. The way it showed the government incapable of keeping its own secrets … well, secret. Nixon had warned that precipitously abandoning Vietnam and the war would leave the U.S. exposed as a “pitiful, helpless giant.” He seems to have believed that a supine reaction to publication of the Pentagon Papers would reveal the same sort of thing about the U.S. government. How could anyone respect — or fear — a government that couldn’t manage its own affairs.

Hence the prior restraint of the Times. Publication by the Post. The “plumbers.” Watergate. The “Saturday Night Massacre.” And, ultimately, Nixon’s resignation.

All, it could be said, because the government did not want the public to know what it knew about itself.

It becomes a habit, this impulse to make secrets out of information that, if it were made public, wouldn’t threaten national security. And it is, evidently, a hard habit to break.

A few weeks ago, there came an announcement that former-president Barack Obama would be giving a speech at MIT. No surprise there. Giving speeches is what he does and he is good at it. But it was puzzling, to say the least, that the speech would be completely off the record. That those attending, including journalists, would not be permitted to record, photograph, tweet or report on the event.

And the punishment for anyone violating this strict code of silence?

Banishment. Never again would the malefactor be permitted to attend a Sloan Sports Analytics Conference.

You had to wonder, first, if anyone at MIT was naive enough to believe that such an embargo would hold up any better than the one on, say, Cuban cigars. And, then, what in the world the former president could have to say that called for such drastic hush-hush measures.

The contents of the speech were immediately leaked. Unsurprisingly. And Obama said nothing scandalous, earth shaking or, even, memorable. The speech was chiefly an exercise in the obvious in which Obama observed that a social media platform such as Facebook was “… a public good as well as a commercial enterprise,” And that while we might disagree on what to do about climate change, denying its reality is insupportable. And, regarding basketball, that some kind of minor professional league might be a good idea “… so that the NCAA is not serving as a farm system for the NBA with a bunch of kids who are unpaid but are under enormous financial pressure.”

This is a secret?

Like most recent presidents, Obama had been burned by leaks while he was in office and perhaps that accounts in some way for his desire to keep his feelings about minor league basketball classified. Perhaps, after eight years as President, secrecy had become a state of mind with him. It was, after all, on his watch that Edward Snowden did more damage to U.S. national security interests through his leaks than anyone since the spies who gave the Soviet Union the secrets of the atomic bomb.

Snowden managed to make his way to the Soviet Union where he remains to this day, surfacing occasionally to taunt and to preen. He does electronic personal appearances in the U.S. and campaigned for a pardon from Obama before he left the White House. He fancies himself a truth teller and a defender of ordinary citizens who are being surveilled and spied upon by their governments. Which makes it odd that he should have found sanctuary in Russia. His detractors consider him a traitor and a spy.

By his actions, Snowden made couple of things plain. First, just how much the government was keeping secret. And, then, just how easily that material could be compromised.

Snowden had access because he was a computer geek. He had the keys to the vault.

There is no foolproof way, it seems, to defend that nation’s secrets — legitimate or otherwise — against a Snowden. He was cleared and even after he’d lost his job with the CIA, kept his clearance. He needed it for his work in the private sector which had him dealing with the systems used to store and share data in the various security agencies.

But, then, the FBI traitor Robert Hanssen had been cleared. So had Aldrich Ames who was to the CIA what Kim Philly had been to British intelligence. One has to assume that since they were senior people with access to highly sensitive and secret material, they would have been investigated more rigorously than someone whose role was purely technical. But Snowden was capable of doing much more damage if he turned.

There may more secret material than ever before. Much more. Almost $17 billion worth, as cited earlier, and that was a couple of years ago. And yet… it is arguably less secure than ever. There are leakers and there are self-styled “whistleblowers” like Snowden and there are people in the media who dig for secrets the way those hogs in France burrow for truffles.

You wonder if it is possible to keep those secrets that are worth keeping and if, indeed, it is possible to know which are. In one review of documents to determine what material could be declassified, it was a ruled that a joke about a plot against Santa Claus from a terrorist organization calling itself “Group of the Martyr Ebenezer Scrooge” should remain secret. The amount of pointless material that is labeled “confidential” or “secret” or, even, “top secret” that is of no interest to anyone is sure to be staggering. And, then, there are more than 4 million people “cleared” for access to such material. Provided, of course, that they have a “need to know.”

People who are cleared and who routinely handle classified material make up their own droll systems. There is a level above “top secret” which is “burn before reading.” And, then, the one above that which is … “burn yourself before reading.”

We know, from history, that a) some of the secrets will get out and b) that the secrecy regime will be abused.

In the early days after the attack on Pearl Harbor, the U.S. Navy was on the defensive and at a disadvantage in the number of carriers and the quality of its airplanes. However, codebreakers had partially cracked the Japanese navy’s codes and were able to read its radio signals. The U.S. knew of a planned operation against Midway Island and was waiting. Planes from American aircraft carriers surprised the Japanese and sank four aircraft carriers in one of history’s decisive naval battles.

Shortly after the battle, the Chicago Tribune published a story under a front page headline that read: ““Navy Had Word of Jap Plan to Strike at Sea.”

The press couldn’t resist a scoop. Even one that endangered the entire U.S. war effort in the Pacific.

A reporter on board a Navy ship had pieced the story together from overheard conversations and by reading documents left, more or less, lying around. It still seems criminal that he wrote the story and that the newspaper published it. If the Japanese had, somehow, become aware of the story, they would have known, immediately, that their Navy’s codes had been broken and needed to be thrown out and replaced by a new code that could not be read. Publication of that story was, arguably, the most treasonous act by the press in American history. One wonders, though, if something like that episode occurred today, might it not result in a Pulitzer for the Chicago Trib and a film starring Tom Hanks and Meryl Streep.

The Roosevelt administration went after the Tribune. A grand jury heard evidence but did not indict. The record seems to indicate that the prosecution wasn’t sure of itself and the U.S. Navy was worried that an indictment would result in further exposure of what might still be a vital secret. It was continuing, after all, to break the Japanese codes.

Interestingly, the grand jury records remained secret for the requisite 75 years and when time came to unseal them, the Justice Department objected in order to “protect witnesses and the innocent.”

Still, you can find what you want in history, if you look hard enough. And you don’t have to look that hard to find cases where governments used the national security dodge to keep secret what turned out to have been absolute lies.

The Dreyfus Affair hung, for years, on the existence of a secret document, bringing down governments and nearly destroying a nation.

But that was France and it couldn’t happen here.

Still, there is this secret dossier, put together by this outfit that calls itself Fusion GPS…

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