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How Secrecy Stops Debate on Secrecy

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DB: Just to read a little bit more about what's going on, Glenn Greenwald writes: "Under the Bush administration, officials and security agencies had disclosed to reporters the large-scale collection of call records data by the NSA but this is the first time significant and top secret documents have revealed the continuation of the practice on a massive scale under President Obama."

Which supports what you were just saying, Shahid Buttar. I know, as an attorney, and somebody who works with the Bill of Rights Defense Committee that this really is a battlefield of free speech. Now, you were talking about whistleblowers, and this kind of security that we are seeing here, and this kind of attempt to shut down any independent information coming from whistleblowers and government officials, well, obviously the Bradley Manning trial is show-cased here in how the administration has acted here to suppress information that is clearly, has clearly been shown to be in the public interest. Do you want to talk about that connection?

SB: Absolutely. Bradley Manning, I think, is exhibit A, in the government crackdown on whistleblowers. And let's not forget, not only was he detained, and is now facing prosecution, he was tortured, despite having done nothing wrong. He simply, unlike most people in the intelligence apparatus actually complied with his responsibility under international law, to reveal evidence of war crimes.

The first thing that WikiLeaks released from Bradley Manning's disclosures was a video of U.S. service members gunning down journalists. That's absolutely something we need to know about. That is not an appropriate secret. And it's interesting, anytime you see claims of government secrecy, the first thing that pops into my head is that someone is trying to cover something up. Right? Secrets are not secrets for no particular reason and most of the time we see blatant over-classification, where most of the classified documents aren't classified for any legitimate purpose. And we see this time and time again.

The Reynolds case before the Supreme Court which established the States Secrets Privilege, the first time the courts basically came up with this notion that they would defer to executive claims of secrecy. That case itself, ended up being a cover-up. And many of the cases, at least since then, are similar. We've seen the States Secrets Privilege used to suppress evidence of corporate complicity in torture. We've seen the States Secrets Privilege used to suppress evidence of mass NSA warrantless wiretapping of the sort not unlike revealed in this document this week to the U.K. Guardian. We've seen the States Secrets Privilege used to hide evidence of FBI infiltration of mosques around the country.

And then the last thing just to complete the equation is that Congress has laid down on the job and is not conducting the assertive, aggressive oversight that is necessary to bring these issues into the public view. The Senate Intelligence Committee was founded because in the 1970's there was a several-year investigation lead by Senator Frank Church that uncovered decades of constitutional abuses by the FBI, the CIA and the Pentagon, spying on the American people.

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The Senate Intelligence Committee -- today chaired by Senator Dianne Feinstein from California -- like the secret FISA court is basically a rubber stamp. And that is not its job. Its job is supposed to be to check and balance the Executive. But there's never been even an attempt at even uncovering the facts in this context. Even when drone strikes were in the headlines and Senator Rand Paul was filibustering the nomination of the CIA director, even then the Intelligence Committee was settling for just getting memos. You know, I'm passed the point of being interested in memos, like let's see some facts.

The reason this document is such a big deal is that this is the first time anyone has seen any facts about the government actually monitoring millions of us, in mass, without any pretext of justification. And I think it is a clarion call for all three branches of the government, and the media, and, most importantly, we the people of the United States to raise our voices and demand that our rights be restored, and that these illegitimate surveillance operations either be ended, or at least finally subjected to transparency and oversight.

DB: I mentioned Thomas Drake earlier. He was a senior executive of the U.S. National Security Agency. He essentially faced espionage [charges], was threatened and prosecuted, almost on espionage charges, for what? For revealing this information...

SB: Fraud and waste ... by the Pentagon. I mean not even misinformation. What he revealed was true and what he revealed related to fraud and waste. What he revealed had in no way any operational benefit to our nation's enemies and yet, exactly, he was prosecuted...

DB: ...to the full extent of the law. Unbelievable!

SB: Even beyond it. I mean beyond the full extent of the law. He was prosecuted so viciously that at his sentencing hearing the federal judge who was sentencing him was scolding, not Thomas Drake, but the Justice Department for wasting taxpayer funds and years of everyone's lives chasing someone who had done nothing wrong and merely performed his public duty. And that was a federal judge talking back to the prosecutors basically saying this is ridiculous why are we wasting our time chasing this man around? You know, he's a national hero, not a criminal.

And the criminals unfortunately are the agencies, and I dare say, the administration and Congress and the courts that have all failed to mind the oaths of office to defend the Constitution against all enemies, foreign and domestic. The biggest enemies of the Constitution are, unfortunately, the FBI, the NSA, Congress, and apparently, the Obama administration. And I should add the secret FISA court in there too.

DB: First, say a little bit more about the FISA court because we hear that a court gets a chance to be a part of these secret proceedings and they are supposed to mitigate our concerns in terms of the secrecy, and then say something about where you think this might be going, and what you're watching very closely.

SB: So the secret FISA court is not a court, at all. And there is this notion, this trope, people are talking about, "Oh, this is reviewed by the courts." It's not a court if it's secret, right? Courts are premised on the idea that a decision is transparent, and that it can be reviewed subsequently by a later court that would be able to compare the facts before it, to the facts before the other court.

But when the decisions are secret, right? That can't happen. It's not jurisprudential legal decision-making. It's political rubber-stamping. And we see that confirmed by the particular order that was released to the U.K. Guardian. There's no conceivable way in which millions of Verizon customers are appropriately just up for grabs for the government to look at.

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Dennis J Bernstein is the host and executive producer of Flashpoints, a daily news magazine broadcast on Pacifica Radio. He is an award-winning investigative reporter, essayist and poet. His articles and essays have appeared in The New York Times, The Boston Globe, The Nation, and (more...)
 

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