Our friend Joe W. (“Chip”) Pitts is tireless when it comes to standing up for the constitutional rights of Americans. He has written for us in the past, on the dangers of the USA Patriot Act and domestic-surveillance schemes dreamed up by the Pentagon. When he’s not writing, Chip is busy as a lecturer at the Stanford Law School and a volunteer leader with Amnesty International, the Bill of Rights Defense Committee, and the ACLU, among other organizations.

Despite the abuses it has engendered under a cloak of secrecy, the USA Patriot Act is being reauthorized by Congress. CNN was finally able to broadcast pictures of bodies recovered in the wake of Hurricane Katrina, but only after taking the Bush administration to court. And journalists are still barred from viewing the caskets of U.S. soldiers flown back from Iraq.

Democracy continues to take a backseat to secrecy as the Republicans in power have blocked investigations into everything from the full record of Judge John Roberts, to the circumstances surrounding the Downing Street memo, to the secret detention systems used in the “war on terror.”

While government secrecy is hardly novel, the degree of secrecy routinely invoked by the Bush administration is cause for concern. Whether by removing information from our midst by classifying it, by refusing to declassify it, or by means of laws like the Patriot Act—secrecy threatens to upset the constitutional balance and fundamentally change our open government.

Secrecy extends back to the Republic’s founding. The delegates to the Constitutional Convention kept secret their evolving work until the deliberations concluded. And the founders recognized the need for secrecy in conducting foreign affairs. But secrecy was the exception rather than the rule in the United States, until the hot and cold wars of the twentieth century created what the late Senator Daniel Patrick Moynihan called a “culture of secrecy.”

Watergate and the fall of the Berlin Wall encouraged a gradual re-opening, as more declassified documents and openness mirrored the globalizing world’s interaction and interdependency. George W. Bush reversed this trend when he became president. A new culture began to creep into the executive branch, one with an extreme emphasis on loyalty and the prevention of leaks (other than “permitted” leaks). Those drapes of secrecy came to envelop even more formerly open areas of government after the 9/11 attacks.

UNDER THE COVER OF 9/11—After the events of September 11, 2001, in rapid succession the administration reversed the Freedom of Information Act’s presumption of openness (effectively closing many records); arrested and deported thousands using secret evidence and secret hearings; pushed through the Patriot Act, with its secret courts, secret searches, and gag orders; used secret and unchallengeable evidence to create several “no-fly” lists and blacklists; and drafted secret “Patriot II” legislation, a development that became public only when it was leaked to the Center for Public Integrity.

The White House has resisted what it sees as interference from the legislative and judicial branches of government, independent bodies like the 9/11 Commission, and even the press. The administration fought federal court decisions ordering that secret detainees’ names be released; that hearings be open; and that a particular U.S. citizen, José Padilla, labeled as an “enemy combatant” and possible terrorist, be released or charged.

Since 9/11, thousands of previously public government web pages have been removed on national security grounds. The Homeland Security Act actually included a provision allowing corporations to shield “critical infrastructure” information from disclosure (and themselves from liability) by giving it to the government—effectively making private but accessible documents secret government documents.

Terrorists should not be given road maps to successful attacks, but many of these measures have denied Americans essential information relating to their health and safety.

While the government was hiding more of its own information, it was simultaneously sweeping up more previously private information on each American. The number of secret searches under the Foreign Intelligence Surveillance Act dramatically increased under the Patriot Act. Such searches now, for the first time, exceed the number of wiretaps issued on probable cause of criminal activity.
The Patriot Act was rushed through Congress without the normal hearings and public deliberation. More recently, the “Real ID” Act was also passed with little public attention, attached to an emergency appropriations bill covering funds for Iraq and Afghanistan, as well as for tsunami relief. The act seriously diminishes the nation’s founding commitment to offer asylum to victims of persecution abroad and moves us substantially closer to a national I.D. card (by mandating that state driver’s licenses conform to new federal standards, including machine-readable personal address and Social Security information accessible to electronic databases).

SOMETHING TO HIDE?—In terms of the sheer number of secret documents (more than 15 million newly classified last year, almost triple the number Moynihan complained about in 1998, with declassification proceeding at less than 25 percent of the rate in the Clinton years), this administration has stepped up the culture of secrecy to levels never before seen in our history, even at the height of the Cold War.

The administration has also used an executive order to vastly expand the scope of executive privilege authorized in the long-standing Presidential Records Act. Now both sitting and past presidents can use the act to block the release of potentially embarrassing historical records without national-security or even public-interest justifications. Not coincidentally, this happened just in time to cover up Reagan administration records pertaining to the role of President Bush’s father during the Iran-contra scandal.

Erwin Griswold, solicitor general to the notoriously secretive President Richard Nixon, noted that fear of embarrassment often trumps national security as the true motive for secrecy. Even arch-conservative Phyllis Schlafly wrote not long ago that “when information is kept secret, the natural inference is that there must be something the Administration is very eager to hide.”

Senator Moynihan persuasively argued that the prior culture of secrecy had been “for losers” in that it harmed national security by preventing healthy criticism and debate. It had increased the risks of intelligence errors, he said, like the misguided concept of a “missile gap,” the failed Bay of Pigs invasion, and the erroneous estimates of Soviet strength.

To this litany of intelligence failures and wrong-headedness, we could now add the failure to predict what happened on 9/11, and the mistaken view that Saddam Hussein had stockpiled weapons of mass destruction.

THE PRICE OF GOVERNMENT SECRETS—While a careful approach to secret intelligence methods is important when fighting a shadowy enemy like Al Qaeda, too much secrecy is costly, and not just figuratively: the cost of making secret the millions more documents classified under Bush was over $6.5 billion in 2003 and over $7.2 billion last year. The toll also extends to legitimate secrecy and security. Excessive secrecy allows mistakes to be covered up, eliminates the critical analysis needed to make improvements, and jeopardizes confidentiality where it is really needed.

The unprecedented surge in secrecy under President Bush also poses a great threat to U.S. constitutional values. A policy of secrecy denies citizens, Congress and the press the information they need to exercise their “checking” roles in our democratic republic. Stigmatized both as ignorant and as unpatriotic, those on the other side of the soaring wall of secrecy are counterproductively silenced. Secrecy’s history is a history of stifled dissent.

This administration goes well beyond these risks, however, by taking the old adage “knowledge is power” to a new extreme. Secrecy is used not just as a shield to protect us against our external enemies, but a blindfold to keep the American public in the dark and to rend our Constitution. The Sixth Circuit court wrote, in holding that the administration’s secret immigration hearings violate the First Amendment, that “when government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation.”

Moynihan called the culture of secrecy “a belief system . . . a way of life” that blurs judgment. By increasing the scope for discretionary judgment, secrecy enhances the rule of man and subverts the rule of law. With the facts hidden, the administration can and does define reality as it sees fit. The White House believes that the president has a “blank check” in the war on terror and is effectively above the law.

DEBATING WITH THE GOVERNMENT—In debates I’ve had with FBI and Department of Justice officials on the USA Patriot Act, I was told that the law has resulted in hundreds of terrorist convictions. A look at the figures proves that the real number (as the Washington Post recently demonstrated) is more like 39. And even those 39 are hardly Al Qaeda terrorists, but include people who entered guilty pleas and received short sentences in large part to avoid lifetime solitary confinement as “enemy combatants.”

Similarly, the administration has persistently fallen short on the reports required to be provided to our legislature under the terms of the Patriot Act. House Judiciary Committee Chairman James Sensenbrenner (R-WI) even threatened to subpoena former Attorney General John Ashcroft to provide required information. Although the current Attorney General, Alberto Gonzales, offers more cooperative rhetoric, his Justice Department repeats the same misleading arguments that the Patriot Act has prevented another 9/11, no civil liberties issues arise, and no abuses have occurred.
Without a way to verify the truth of the administration’s claims about its effectiveness in keeping us safe, we are merely taking things on faith. This is a major problem. To the degree that scarce resources are being wasted putting illusory notches on law enforcement belts and real terrorism is neglected, our security suffers.

Secrecy also covers up other illegal activities and abuses, such as those relating to the corrupt practices of the vice president’s “former” employer Halliburton (from which he continues to receive over $160,000 a year). The Pentagon’s notorious stonewalling of Congress, hiding our own government’s audits revealing hundreds of millions in fraud and overbilling, arose from deferring to Halliburton’s expansive view of what constitutes proprietary information.

The war in Iraq was in part justified to our allies by manipulated intelligence from secret deliberations that have been revealed through leaked documents like the Downing Street memo. In 2002, President Bush secretly diverted $700 million from Afghanistan to Iraq invasion planning without congressional approval. It is not legal for our government to subject the American public to domestic propaganda. Yet the government secretly produced hundreds of videos on behalf of different federal agencies purporting to be from news outlets but actually advancing the administration’s positions on welfare reform, Social Security, and the like.

Secrecy has enabled the systematic approval, contrary to official condemnations, of illegal torture and ill treatment of detainees in Guantánamo Bay, Iraq, Afghanistan, and also in secret facilities operated by the CIA in such places as Jordan, Pakistan, Egypt, Diego Garcia and on U.S. ships. Leaked classified memos show that the White House contemplated a secret global detention and interrogation network practically from the time of 9/11.

TORTURED LOGIC—At the time that Alberto Gonzales was the White House Counsel, he asked for, and received, Justice Department memos confirming that Guantánamo was a realm beyond the law, that torture could be narrowly defined as physical pressure equal to that causing death or serious organ failure, and that the president as commander-in-chief could override both the Constitution and international law. The administration lawyers readily complied, and the torture predictably commenced.

Secrecy is almost always a precondition for torture, for what self-respecting official would publicly admit to resorting to such means, so clearly prohibited by the absolute ban in the Geneva Conventions, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Convention Against Torture? The ban on torture is so clear that no exceptions are allowed even in times of war or serious national emergency.

As Winston Churchill said, secrecy is always the handmaiden to deception. The U.N. Committee Against Torture, the official body charged with monitoring and interpreting the torture treaty, has held that extended isolation in solitary confinement itself can be torture, and such isolation is also illegal under the Geneva Conventions. Yet in recent hearings before Congress, General Thomas Hemingway testified that he wouldn’t call the practice “solitary confinement”—though he “might call it segregation.” A New Yorker reporter visiting Guantánamo was similarly told that they don’t hold people in isolation, just “segregation.” This is akin to the legalistic wordplay that leads to the ludicrous statements from Secretary of Defense Rumsfeld and the Pentagon that things like chaining a detainee in stress positions, “hooding,” sleep deprivation, and injecting IV fluids until the detainee urinates on himself do not amount to “torture.”

Questions about numbers, names and nationalities of detainees went unanswered at a recent Senate Judiciary Hearing. Without more information, and free and independ-ent public inspections, we cannot know for sure what is being done in our name.

WE MUST RESIST—If I am correct that this unprecedented secrecy is qualitatively new in U.S. history, supporting a correspondingly new consolidation of executive power, we must do two things.

First of all, we must shine the light of public scrutiny on this hidden realm by demanding greater transparency and accountability. Congress should defend its laws from being unilaterally amended by executive order and should reassert control, for example, over the Presidential Records Act and the Freedom of Information Act.

The second priority, related but conceptually distinct, is for the press, Congress, the judiciary, and the public to reassert their responsibility for oversight and re-create the constitutional scheme of checks and balances. Each of these bodies must be more aggressive in lifting the veils of secrecy and spin cloaking government violations. The people and the press have a special burden to hold the government accountable, as currently all three branches of our federal government are controlled by one party.

A good start would be further demands for an independ-ent commission and special counsel to investigate impartially, and for the first time, those high up in the chain of command who secretly approved the torture policies.