I am suggesting that in the national security bureaucracy in the executive branch (and now, regrettably, the intelligence committees of Congress as well), the secrecy "oaths" (actually, agreements, conditions of employment or access) have the same psycho-social meaning for participants as the Mafia code of omertà, with the difference that the required "silence to outside authorities" forbids truthful disclosure not to the state or police but to other branches of government and the public.
Here's a very fine essay on why my "spidey" sense stays at full attention now.
Ellsberg writes: "The mystique of secrecy in the universe of national security...is a compelling deterrent to whistleblowing and thus to effective resistance to gravely wrongful or dangerous policies."
By Daniel Ellsberg, Reader Supported News
14 January 13
I) Reflections on Secret-keeping and Identity
In the "national security" area of the government - the White House, the departments of state and defense, the armed services and the "intelligence community," along with their contractors - there is less whistleblowing than in other departments of the executive branch or in private corporations. This despite the frequency of misguided practices and policies within these particular agencies that are both more well-concealed and more catastrophic than elsewhere, and thus even more needful of unauthorized exposure.
The mystique of secrecy in the universe of national security, even beyond the formal apparatus of classification and clearances, is a compelling deterrent to whistleblowing and thus to effective resistance to gravely wrongful or dangerous policies. In this realm, telling secrets appears unpatriotic, even traitorous. That reflects the general presumption - even though it is very commonly false - that the secrecy is aimed not at domestic, bureaucratic or political rivals or the American public but at foreign, powerful enemies, and that breaching it exposes the country, its people and its troops to danger.
Even those insiders who have come to understand that the presumption is frequently false and that particular facts are being wrongly and dangerously kept secret not so much from foreigners but from Congress, courts or the public are strongly inhibited from speaking out by an internalized commitment to keep official secrets from outsiders, which they have promised to do as a condition of employment or access.
To be sure, there are strong, usually more than adequate careerist incentives not to break those promises. Being found to do so exposes officials to loss of access to meetings and information, loss of clearance, demotion or loss of promotion, loss of job or career, loss of retirement benefits, harm to marriage or to children's prospects that comes with loss of income, even danger of prosecution and prison. The last risk is much less likely than they are led to believe - at least, that was true prior to the present Obama administration - but the other job-related penalties are not, and they prove more than sufficient to keep most secret-keepers from breaking the rules in ways that would expose them to such losses, even when the welfare of many others is at stake.
However, as a former insider I can attest to psychological dimensions of this behavior that seem rarely to have been discussed. They seem worthy of some extended reflection here, given my own motive to understand this behavior in order in some respects to change it. In my experience, the psychological stakes for officials in keeping their commitment to keep secrets - even what appear to be "guilty" secrets that not only preclude democratic accountability but endanger the welfare of many people - go beyond careerist calculations of keeping a job or possible punishments for disobedience, influential and even sufficient as those considerations generally are.
The promise to keep "secrets of state," once demanded and given, becomes virtually part of one's core identity. In the national security apparatus, one's pride and self respect is founded in particular in the fact that one has been trusted to keep secrets in general and trusted with these particular secrets. Second, they reflect one's confidence that one is "worthy" of this trust. Indeed, the trust (with respect to truly sensitive secrets, requiring utmost reliance on the discretion of the recipient) will have been "earned," before being conferred, by a long history of secret-keeping, building habits that are hard to break, that form part of one's character.
These habits will allow a good deal of leeway and discretion in disregarding formal rules of the classification system when it comes to sharing information with others who have not been explicitly authorized to receive it - even reporters who have not been formally cleared, in flat violation of the rules - when this is in the interest of furthering the policies or interests of one's agency boss or the president.
But the habits and reflexes of an experienced national security bureaucrat will be strong and reliable with respect to observing the "real" rules, against revelations to potential adversaries or rivals of the policies or agency or bosses one serves: whether in other agencies (or within one's own), or Congress, or the public. (Keeping information from foreign adversaries - the official rationale for the whole secrecy system - is actually a less salient consideration for the larger part of the classified material, especially that which is "only" top secret or lower. Since foreign states neither control the agency's budget nor do they vote in elections or in Congress, they are not the parties who must be excluded from much of the most "sensitive" information.) .
Thus, a readiness and ability to keep secrets reliably is a prerequisite for these highly prestigious and powerful positions in our political system. But in this area as throughout human endeavor, it is a fundamental truth that wrongful secret-keeping is the most widespread form of complicity in wrong-doing. It involves many more people both within and outside an organization that is acting wrongfully than those who give wrongful orders or who directly implement them, though it includes these.
Since wrong-doing virtually always requires both secrecy and lies, and further secrets and lies to protect the secrets and lies, the wrongful operation - especially in a regime that approaches democracy - is commonly highly vulnerable to a breach of secrecy by any one of the many who share the secret. Yet typically in the national security field (and to a striking degree even in corporate and private associations without a formal apparatus of secrecy) even the "weakest links" do not break. No one tells.
And this is true even as important laws are being knowingly violated, or when many lives have been and more will be harmed by ignorance of the information being withheld. Think of the many situations in which whistleblowing was either wholly absent or very belated: the internal buildup to the Vietnam and Iraq wars; the tobacco industry; Vioxx; the accounting scandals of Enron or Worldcom, with its widespread effects on retirement accounts; child abuse by Catholic priests and cover-up by bishops; NSA warrantless wiretaps and White House-directed torture and kidnapping, after 9-11.
In each of these cases, there were many insiders aware of the abuses and danger to outsiders, indeed ultimately to the organization itself. Yet there was virtually total silence, for years, to outside authorities or the public, total lack of warning to potential victims. Careerist incentives undoubtedly explain most of this: but all of it? The extraordinary lack of any break at all in the discipline of secrecy, no matter the human stakes?
The examples above make clear that this is not only a phenomenon of government, or of the national security bureaucracy. The following reflections derive from my own experience in that bureaucracy, where large-scale unauthorized disclosures have been very rare (the Pentagon Papers, and the recent Wikileaks releases: two cases in forty years). But they apply as well, in some degree, to any organizations or groups that effectively demand some secret-keeping as a condition of membership. That is, to nearly every human group.
One could regard secret-keeping in such a group as simply a form of obedience to orders or regulations or directives from authorities. But often, I would say, it is closer to contractual behavior, keeping a promise or agreement. "Keeping one's promises," and keeping agreements are recognizably among the highest values we are taught to observe as children and adults. What I am exploring here is how it comes about that people in organizations in some circumstances act as if those values are actually absolute, overriding other considerations that would appear to an observer to be extremely compelling.
After all, in ordinary life people do - "all the time" - break promises and tell secrets they have promised to keep. But a promise to keep secrets is a special kind of promise, in two ways that one might think cut in opposite directions. On the one hand, if what you are about to learn - on condition you keep it secret - is presumptively something you don't already know, you are making a commitment whose exact content and bearing you don't know. It's like agreeing to do something on someone's demand without knowing at all in advance what you may be asked to do. You can't foresee confidently how it might relate to other obligations you might have - to warn someone or keep them informed - or to your various interests. In that light, it might seem intrinsically less binding than a promise made with full foresight of its implications.
Why would an experienced grownup make such a promise with the expectation of holding to it no matter what the new information turns out to be: and actually feel obliged to hold to it when keeping these particular secrets turns out to look very problematic indeed? Well, often that is a condition of employment in a job you need or very much want. And I've already noted the strong career disincentives to breaking that condition once made, in the national security field in particular.
Yet the federal employee is also a citizen, moreover a public servant, who has sworn an oath to support the Constitution. That might seem to create a special feeling of obligation to tell the truth, even secret truth, when one learns - by virtue of the very access to secrets that one's promise has permitted - that domestic or international laws are secretly being broken, or Congress and the public are being deceived on matters of war and peace, or rights guaranteed by the Constitution are being violated in secret. Why does the demand and offer of secrecy seem almost universally to override such considerations?
I suggest that there are psycho-social aspects of promises made under these circumstances - bearing on self-image and self-respect, as well as status and acceptance in the larger society - that especially inhibit violating these particular promises. The circumstances I have in mind apply to "secret societies" ranging from the Mafia or associations like the Masons to the CIA, and much more broadly to the Departments of Defense and State and the multitude of corporate contractors that do classified work for the Pentagon and the "intelligence community."
When one has promised secrecy as a condition not just of routine employment but of membership in a prestigious group or organization or an "elite" sub-group, violating that pledge is not like breaking an ordinary contract or agreement between two equal individuals or strangers. The opportunity to make such a promise is offered, and felt and accepted, as an honor: something to be proud of, a basis for respect among those who know of it (who are respected by oneself.)
The very offer, especially once accepted, is a mark of worth, of membership in a valued group, possession of a valuable identity. It is a sign of being trusted by other members of the prestigious group: a token of being perceived by them as trustworthy, worthy of membership, of being "one of them," a "brother" or "member of the family." In contrast, little of this is true of an ordinary contract or promise, made for a consideration, entered into for mutual benefit between two parties.
The demand for secrecy, in the cases considered here, accompanies and is an essential part of the opportunity to join the group, to serve its purposes along with the other members, an invitation not made to just anyone who might wish to join. The invitation, and the acceptance of the promise of secrecy, is the result of cooption, often after a process of initiation, successive tests of various sorts, observation, after which one has been judged worthy of having one's promise of secrecy believed. It is like having a high credit rating established: in this case, one's "credibility rating," or more specifically, one's reliability for discretion.
Not only the membership in the group, but the specific acceptance of one's loyalty - to the group, to its purposes, to the other members, and its secrets - conveys and expresses a new, prestigious status, a positive identity, a source of self respect and pride and a basis for the respect and deference of others.
The vetting or "clearance" required for the offer and the special access based on acceptance of the promise are a credential and a requirement not only for a particular job but for membership in an elite, a prestigious sub-grouping. (That in turn may be the opportunity for "networking" contacts and advancement on which a whole career and social identity may be based.)
Breaking the pledge of secrecy in (a) way that is not tacitly tolerated or authorized by group leaders or practices is generally the surest and fastest way both to lose that credential and to be expelled from the group. And to (be) expelled from one such group for that reason means not just the loss of a particular job or contract or benefit but the equivalent of a loss of credit-rating, a shameful bankruptcy. The result is like a general denial of credit, or in this case to a denial of any other jobs or career which require reliable secrecy. These include most influential or prestigious positions in the broad field of national security employment (and perhaps other professions that rely on discretion, for example law, medicine, police and the priesthood). Thus there is a loss of a particular kind of social status and sense of self-importance.
Moreover, it is likely to (be) accompanied by internalized feelings of shame and guilt. This applies not only to groups that are generally admired but to secret organizations like the Ku Klux Klan or the Mafia that are illegal in the nation at large but highly respected and self-respecting in their local regions or neighborhoods. To "betray" the valued group is to prove unworthy of the trust placed in you, to disappoint their recognition that you deserved to be one of them, their belief that you were one of them at heart.
For the Mafiosi "men of honor" (interestingly, the title of William Colby's memoir of his life in the CIA is "Honorable Men") the agreement to keep secrets is so central that the oath of membership includes the explicit acceptance of ultimate sanctions - death or worse, including "burning in hell," for oneself and even one's family - if the obligation of silence to outsiders, omertà, is broken. Thus is expressed loyalty to the organization that goes above loyalty to one's own life and even to the lives of one's family members.
This represents an extreme, but even for gangsters that overriding physical danger doesn't entirely eclipse the additional threat that applies as well to other groups throughout society, the fear of psycho-social punishment for "spilling secrets," "washing dirty linen in public," "ratting" on one's team. It is a fear not only of expulsion and ostracism but of one's own awareness that outsiders as well as team-mates will feel that these consequences are deserved: and fear of one's own sympathy for such judgments, a sense that the reaction is understandable and appropriate. The "snitch" is an object of intense contempt not only from gang members but even from their adversaries, the police: an uncanny revulsion that the "informer" is painfully inclined to share about himself.
I am suggesting that in the national security bureaucracy in the executive branch (and now, regrettably, the intelligence committees of Congress as well), the secrecy "oaths" (actually, agreements, conditions of employment or access) have the same psycho-social meaning for participants as the Mafia code of omertà, with the difference that the required "silence to outside authorities" forbids truthful disclosure not to the state or police but to other branches of government and the public.
To be sure, the sanction for telling embarrassing Executive secrets to congressional committees that control the budget or to voters through the media is not gang-style execution or physical retaliation on one's family. But it doesn't have to be, to be comparably effective. For President's Men - a prized self-image throughout the national security bureaucracy - the prospective loss of all clearances amounts to social death. (Recall the public stripping of J. Robert Oppenheimer's clearances in 1954, from which he is said never fully to have recovered psychologically.) Moreover, in this field these feelings of dissolution of trust and social ties are amplified by the foreseeable conclusion in the larger society - however unjustified - that in breaking secrecy you have proven unpatriotic, and that you have deliberately or inadvertently risked or sacrificed the security of your nation and perhaps the lives of fellow countrymen.
The secret-breaker is not trusted even to be in social contact with their former associates, lest he or she overhear more secrets that might be leaked, or infer them from intimate interactions, facial expressions. Nor would continued association be compatible with the extreme stigmatization that the group requires of violations of its secrecy. To allow the secret-teller to be an accepted social partner in any context at all - meals, parties, meetings, receptions - would suggest that their behavior was not incompatible with "being one of us," with the high character that is demanded and expected. To accept any friendly or even neutral interaction at all with such a renegade would raise questions about one's own loyalty to the group and commitment to keeping its secrets.
Thus what is most feared by most prospective secret-tellers-with good reason - is social isolation, ostracism, exile, if they reveal the secrets of the group. If they are found out, they can expect (though not all of them do, beforehand) the loss of friends and relationships, more or less irrevocably, as well as loss of job and career. For someone like myself who has spent a dozen years doing classified work - virtually every colleague I knew during that time had a security clearance, which could be jeopardized by any suggestion that they did not entirely condemn my disclosure of the Pentagon Papers - that means the loss of all your professional friends, semi-permanently. It is as if you were exiled to another country or had emigrated: or as if they had, all of them.
That may seem over-dramatic, but it actually describes the experience rather closely, both in anticipation and in reality. In my own case, after my trial ended in 1973 it was at least fifteen years - roughly until the end of the Cold War - that any former colleague of mine from RAND or the government, with two or three exceptions, would permit themselves to be found even momentarily in a room or a meeting with me. Nor did I hear from any of them ever again, either directly or indirectly. This is a characteristic experience for whistleblowers.
Humans are herd animals. The threat of expulsion from a group on which their well-being and self-regard depends will keep them participating in (or helping to conceal) behavior they would abhor in the absence of that threat. Socialization in the practice of keeping their organization's secrets gradually blinds them to moral ambiguities or conflicts that might earlier have given them pause. For example, they become less and less mindful that what is being demanded is a loyalty to the institution that is implicitly superior to any other loyalty or obligation whatever, and which overrides altogether the interests of outsiders. Keeping particular secrets that threaten the institution (a lurid instance: widespread child abuse among Catholic clergy) may greatly prejudice the welfare or safety of others, but this is not to be considered in keeping the promise of secrecy or sanctioning violations of it.
Moreover, a promise to keep certain secrets really well entails a promise to lie when necessary to keep an outsider from suspecting or guessing the secret. This corollary is not always obvious to the neophyte at the time of making the commitment, but the experience of watching and listening to other insiders as they deceive the "non-witting," and of being watched, mentored and judged by them as the initiate does or does not do likewise, will soon make the connection clear.
Thus, in being given access to secrets along with membership in a group or status, one is being trusted, among other things, to lie to "outsiders," even when these are friends who are trusting and trusted by you, to whom in other contexts (or in their eyes, under all circumstances!) you owe openness and honesty.
A personal example: when my close friend Tony Russo at RAND asked me on several occasions if I knew anyone who had worked on or might have access to a study he had heard of that later came to be known as the Pentagon Papers, it was my duty to tell him "no," since although he had a top secret clearance himself at the time he was not authorized to know those particular facts. The truth was that I had worked on the study myself and had it in my office safe at RAND. Lying convincingly to my friend to keep a secret came easy; it had long been part of the job for me. Without that ability, I could not earlier have been granted a dozen clearances higher than top secret, the existence of most of which was a well-kept secret from all who didn't have them.
Yet truly effective resistance to wrongful practices by one's own group, organization or nation - certainly resistance up to the limits of one's own knowledge and abilities - may not be possible without telling secrets without authorization. Effectively to change harmful or wrongful policies or practices (putting aside questions of accountability) will very often require exposing them to those outside one's organization - one definition of "whistleblowing" - and this entails breaking that code of omertà, the promise of silence, and with it, foregoing that trust of others, that sense of oneself, that has been a fundamental basis for self-respect, pride, and valued relationships with superiors, colleagues and agencies.
Moreover, it may well (I would say, typically) be necessary, to have adequate effect, to go beyond oral testimony, whether private or public. Given official cover stories concealing the true policies, given effective lying about them by most of those in the know, and given the benefit of the doubt that is vouchsafed by most of the media and public to official descriptions of motives and activities, documents are essential to make one's revelations of culpable secrets sufficiently credible: credible enough to impel effective action in response to them, credible enough to mobilize effective resistance to authoritative policy.
But precisely because copying and giving secret documents to outsiders is so much more powerful than purely oral witness, it will be seen by one's colleagues as an ultimate betrayal. It may well feel that way to the secret-sharer, too, to the extent (which is rarely zero) that he or she retains some sense of identity with those associates. That is so because documents have the ability to compel belief, to "prove" allegations of lying or wrongdoing, and thus to strike fatally at the prestige and authority of the group or its leaders, their own sense of righteousness and identity. Revealing documents may expose them not only to loss of office or job but to prosecution. Yet nothing less than such revelation may protect the lives of many others.
There is always a powerful option for those in the executive branch who know, or who come gradually to recognize, that a disastrous course is being chosen or is underway, that the real policy or its costs and dangers are being concealed, and that it is being supported by Congress and the public on the basis of lies and manipulation. That state of awareness is not purely hypothetical. It was true for dozens, perhaps hundreds, of civilian or military officials as America was being lied into escalation in Vietnam in 1964-65 or into invading Iraq in 2001-2003.
Many of them were anguished or distraught, and some made their views known, without effect, to some colleagues or superiors. Some of them, in the case of Iraq, considered resigning or wished later that they had, and a few actually did so, without much notice. Others, like Robert S. McNamara thirty years after his role in Vietnam, wished they had presented their views earlier and more boldly to the President, at the risk of being removed earlier than he actually was.
There was in fact a far more promising path of resistance for all of these dissenters from a hopeless and homicidal policy, one which none of them appear even to have imagined or considered at all. That was not merely to press their case within the executive branch, however strongly, nor to resign in silence: but to use their expertise and access as executive officials or staffers to influence Congress to investigate administration policy and explore alternatives to it, with hearings and subpoena power, and if necessary to use its constitutional power of the purse to force a change in course.
That would have called on them to reveal and expose the executive branch policy and lies to Congress with testimony - their own, and that of other dissenters they could identify to Congressional members and staff - and with documents from their own office safes (or now, computers). It would mean testifying to and working directly with Congress and courts and the press and public associations opposed to the policy. And preferably to do this as an executive official or employee before being fired, and to continue it afterwards.
This is what George Ball or half a dozen others whose dissent to escalation remains less well known (and I and my immediate boss) could and should have done in 1964-65 to avert the Vietnam War. It is what Robert McNamara could and should have done in 1966 or 1967 to end the war after he had come to recognize its hopelessness. It is what Colin Powell or Richard Clarke or a number of their subordinates could and should have done to avert the invasion of Iraq in 2001-03.
Is it really realistic to say that these particular individuals "could" have acted in that way, that it was psychologically available to them to imagine or carry out such behavior? Probably not. (Clarke came close to it: although regrettably, like myself, not until the war had already begun and after he had lost access to current documents with which to prove his case.) The usefulness of raising such "possibilities" is not to judge them personally but to suggest a lesson for current and future officials who find themselves in a comparable position to draw from their failure to act in such fashion.
Other forms of opposition within the Executive branch - or after resigning silently, still declining to reveal inside information or to criticize former bosses and colleagues - are often considered and then dismissed by executive dissenters because these actions look impotent, probably rightly so. So the dissenters (like Ball or Powell) keep their jobs and stay inside as long as their quiet dissent is tolerated, trying to influence the President on other matters or to help implement the disastrous policy more moderately and humanely than others might do it. This may not be a lot more effective than the measures they have rejected (it wasn't for Powell, with respect to invasion or torture), but it doesn't challenge their identity or associations in the short or long run and it is a lot more comfortable.
By comparison, from the point of view of effectiveness, this other alternative which seems never to come to their minds - wholehearted collaboration with Congressional investigators and legislators, along with courts and press, including the sharing of large numbers of secret documents - has a great deal of promise in a democracy. It is entirely in keeping with the letter and spirit of the oath actually sworn by every member of the executive branch, to support and defend the Constitution of the United States against all enemies, foreign and domestic. But it does entail giving up any prospects of working ever again in the executive branch, or perhaps in other corporate hierarchies. No doubt that is why there are no precedents for it.
It would mean to "defect" from the executive branch to the other institutions of democratic self-government. It would be more than a shift in career, it would be a shift in identity. It could not be contemplated by someone who had not yet become willing to give up the sense of being - or the desire to become again in the future - "one of the President's men." (As it happened, my reading in 1969 of twenty-three preceding years of presidential decision-making in Vietnam, in the Pentagon Papers, burned that desire out of me: which made me available for radical career changing.)
But as my own example illustrates, people do change. Helping to stop a war, or to prevent some other catastrophe or preserve our Constitution, can be worth a loss of whatever identity. It can be worth one's life, or life in prison. In my case, along with learning secret history, it took a war and the secret knowledge that it threatened to persist and get larger, and finally, direct encounters with war-resisters who were giving up their freedom to avert that prospect, to bring me finally to that recognition.
II) Some lessons from my own experience
Between 1968 and 1971, I repeatedly broke a solemn, formal promise that I had made in good faith: not to reveal to any "unauthorized persons" information that I received through certain channels and under certain safeguards collectively known as the classification system.
I had signed many secrecy "oaths," or contractual agreements, over the years: as a US Marine officer, as an employee of the RAND Corporation, and later as a highest -level employee of the Department of Defense and the Department of State. All of them were blanket promises never to give any information that was identified as safeguarded or secret - "classified" - to a person who did not have a proper "security clearance" for it and moreover, explicitly authorized by higher authority to receive it.
Implicit in my promises not to reveal such information to unauthorized persons was that I would obey this commitment no matter what this information might be:
-even if it revealed evidence of official lies, crimes, planning for wars in violation of ratified treaties or the US Constitution, violations or planned violations of laws made by the US Congress;
-even if the unauthorized persons or agencies were officials of the legislative and judicial branch who vitally needed the information to carry out their constitutional functions and had a legitimate right to learn the truth;
-even if an election, congressional investigation, or vote that decided issues of war and peace might be affected by public ignorance or by my silence and obedient lies about the government's secret actions and plans;
-and even if countless people had died and were continuing to die because the information was being wrongfully withheld by my own colleagues and superiors under a policy of secrecy and deception.
That is how I was meant to understand those promises. And for many years, I followed the rules. Of course, they were not explicitly spelled out in these terms in the papers I signed, nor were they told to me in briefings. If they had been, they would have given me a good deal of pause, to say the least.
Would I have signed those contracts regardless? Probably: at least in the beginning, which was in the mid- and late-1950s. Government secrets had been so well kept by so many people before me that as a young citizen I was unaware that I might ever be confronted with such problematic information in the service of the US government. Eventually I came to know better, though it was still many years before I began copying secret information and giving it to the US Congress and the press.
Had the obligation to keep silent about lies and crimes been made explicit during that period, it would have been more difficult for me to continue repeating these promises as I took new jobs, renewed old contracts, and received higher clearances. It would have been harder to conceal from myself that what I was being asked to sign was an agreement to participate in major governmental conspiracies and grave obstructions of justice by remaining silent or even committing perjury. An agreement so stated and interpreted would clearly be unenforceable, indeed, illegal. It would be in flagrant violation of my superseding oath of office in all those positions, which was to defend and support the U.S. Constitution.
I have never doubted that, under the circumstances facing me, I did the right thing when I copied and revealed the contents of the top-secret Pentagon Papers-a 7000-page, 43-volume study of U.S. decision-making in Vietnam from 1945 to 1968, which was then in my authorized possession at the RAND Corporation-to the Senate Foreign Relations Committee in 1969 and later to the press. Although it involved breaking the promises I had made to various government agencies and the Rand Corporation, it was the only way to inform the US Congress and the US public of information that was being wrongfully withheld from them. I had considered many other options and tried most of them. The information was vital to Constitutional processes of decision-making on an ongoing war in which tens of thousands of US citizens and millions of Vietnamese had been - in effect - lied to death.
Moreover, this had occurred with the complicity of a generation of officials - myself among them - who had placed loyalty to their promises of secrecy (and to their bosses and careers) above their sworn loyalty to the Constitution and to their opportunity to avert or end an unnecessary, wrongful, hopeless, and vastly destructive war. By 1971 - when I gave the classified study to the New York Times and, in the face of unprecedented federal requests for injunctions, to the Washington Post and 17 other newspapers - it was clear to me that it was my earlier complicity with the secrecy system that was mistaken and censurable, not my later choice to tell the truth.
Thus I exchanged a highly-paid and prestigious identity as, in part, a keeper of presidential secrets for the more controversial and ambiguous identity of "whistleblower." Or in the eyes of many Americans, a less ambiguous identity: "traitor."
Actually, among the twelve federal felony charges I faced in court between 1971 and 1973 - with a possible total sentence of 115 years in prison - "treason" was not included. What I had done clearly failed to fit the standards of the U.S. definition of treason, which is the single crime that is defined in the U.S. Constitution: "Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." Although Richard Nixon, out of office, commented to an interviewer that my truth-telling had given aid and comfort to the enemy, he studiedly declined to use the term "treason" (though that was clearly how he intended to be misunderstood) since I obviously did not "adhere" to the Viet Cong or to any foreign power.
The founders of our country put that definition in the Constitution, with its "only," in order to limit its application and to make it impossible for the Executive or Congress to expand its breadth without going through the amendment process. They were sensitive to this prospect because in the eyes of the British Empire our nation was founded by traitors, all of the Signers in 1776. They wanted to keep American presidents from thinking like George III, who said: "I desire what is right. Therefore, everyone who opposes me is a traitor."
Nevertheless, I am still widely perceived as a "traitor," a term used publicly about me by Vice-President Agnew and privately by Presidents Nixon and Reagan. An even wider number see me as having "betrayed" a trust, having broken a promise to keep secrets (which I did) and thus embarrassed my colleagues in two Democratic Administrations. (As former Vice President Hubert Humphrey reported in to the Nixon White House while the source of the leak was still in question: "No good Democrat could have released this study.")
My late friend Jim Thomson, a former White House official, once informed me that as a Harvard professor he had asked the entire incoming freshman class at Harvard in an orientation session in 1974, a year after my trial had ended, how many of them admired what I had done. Virtually all raised their hands. Then, he told me, he asked them, "How many of you would hire him?" Very few hands were raised.
After all, even if they agreed with and even applauded my judgment and behavior in this instance, I had ultimately demonstrated my willingness, my determined resolve, to rely on my own judgment and conscience when it came to revealing or concealing information, rather than the judgment or orders of superiors or social authorities. Nor had I felt absolutely bound even by my own earlier promises and commitments made in an earlier state of information and opinion.
Next time I acted that way, they might not agree with me, or their superiors might not. Moreover, I had set a dangerous example which might encourage others, who were equally well-intentioned but had poorer judgment about context and necessity, to reveal secrets when it was not so appropriate. Virtually all other whistleblowers have evoked the same response among their former associates.
The concern of all these people for their own future "effectiveness," leading to their distancing themselves from the whistleblower, has a realistic basis and is understandable, in any case inevitable. But its validity, the necessity for it and the appropriateness of it, depends partly on an estimate of the danger that such an example represents for society - encouraging the possibility that others would act in future as I did with the Pentagon Papers, or Bradley Manning is accused of doing - as compared with the danger that few or none will do so.
On its face, to "betray" a promise or a secret or a friend is bad, to be condemned and deterred, to be avoided, prevented or minimized. But who or what, exactly, did I "betray"? And was there not, to the contrary, a dangerous kind of betrayal involved in keeping the secrets I revealed, the kind of secrets I myself had kept earlier and that many others did at the same time and subsequently, including much secret-keeping going on right now?
Should those who approve of what I did under the particular historical circumstances understand those circumstances to be extraordinary, so that the justification for my secret-sharing was highly exceptional? Does the occasion for justified violation of the secrecy regulations on the scale of the Pentagon Papers arise only once every thirty or forty years? The present system of civilian secrecy was born about seventy years ago. The Pentagon Papers were released in the middle of that period, and it has taken another forty years for a disclosure of comparable size, the Wikileaks War Logs. Is that about the right frequency?
Let me make a contrary estimate. I would say that there has been a comparably grave and potentially scandalous situation, justifying comparable large-scale revelation of internal, wrongfully-withheld documents, on the average of every couple of years during that period. (Often several at once). That is also true looking right around the world. In one country or another, if officials were acting appropriately as I see it, there would be a Pentagon Papers publication (if not in the country of origin, in another with a freer press, or perhaps now in Wikileaks) every few months.
Given the frequency not merely of minor error and fraud but of outrageously dangerous, immoral or catastrophic policies that national secrecy systems conceal, revelations on the scale of the Pentagon Papers or the Wikileaks videos or War Logs (or, say, Mordechai Vanunu's photographs revealing the surprisingly large scale of the clandestine Israeli nuclear weapons program) should be the rule, not the exception, in the world. That is true even if the truth-tellers had to expect extreme governmental and social sanctions, as they now do and no doubt always will.
This applies not only to revelations from within governments and their national security apparatus but for the corporate sphere. Thus, Merrell Williams, as a paralegal, copied and released 4000 pages (the same number I gave to the press) of Brown and Williamson documents to Congress and to the New York Times. These "Tobacco Papers" revealed a generation of guilty knowledge and criminal cover-up of carcinogenic and addictive effects of cigarets and deliberate promotion to minors that had contributed to the deaths of millions of people. The documents supported the whistleblowing testimony of former Brown and Williamson official Jeffrey Wigand and formed the basis for unprecedently successful class-action suits. Is tobacco the only industry that has been wrongfully concealing thousands of pages whose exposure would save lives and justify personal risk? (Think Vioxx, Ford-Pinto, asbestos, British Petroleum).
This is a call for more Vanunus, more Frank Serpicos, more Vil Mirzayanovs (who revealed the development of new nerve gases by his Soviet chemical weapons department, at the risk of prison), more Merrell Williams' and Wigands.
But beyond that it is a challenge to the secrecy systems, and to the culture of secrecy that sustains them, which make such extreme risk-taking behavior so frequently necessary and appropriate. "Abuse" of the secrecy system is not occasional and exceptional in any of these countries, democratic or otherwise. To a good first approximation, it is the system. In light of what we have come to learn of what is concealed by these systems and the type of policies that are encouraged and protected by the past and current prospect of reliable secrecy, violation of the existing rules should be the norm.
There might well be a Pulitzer Prize for "sources." Under current conditions, especially in the area of national security and classification, it could be given anonymously if necessary, to be received in the name of the source and passed on by the reporter or Congressperson who published the information. The purpose of such awards would not really be directly to influence the incentives to whistleblowers, for whom other considerations would overwhelm any thought of awards. It would be publicly to declare the legitimacy, importance, necessity, value of what the whistleblower does, to encourage a climate of norms and opinion which would make whistleblowing more thinkable, more doable, to officials and thus to encourage more of it: even if it never becomes much more safe from administrative and career sanctions.
Since 2004, the annual Ridenhour Awards (named in honor of Ron Ridenhour, the Vietnam War veteran who exposed the My Lai massacre) given by the Fertel Foundation and the Nation Institute have amounted to such recognition. In 2009, for example, the Ridenhour Truth-Telling Prize was awarded to Thomas Tamm, the former Justice Department official who was the original source to the New York Times in 2004 about the illegal warrantless - wiretap program of the National Security Agency under George W. Bush. (At the time of the award Tamm remained under investigation by the Obama Justice Department; they dropped the inquiry in the fall of 2010.) In 2010 that prize went to Matthew Hoh, who resigned his State Department position in Afghanistan to speak out against Obama's escalation there.
More fundamentally, it is the rules, the system, that should be changed, in pursuit not merely of abstract principles of openness but of the realistic benefits of genuine democracy. These potential benefits, foreseen by the drafters of the Constitution and the First Amendment but demonstrated most dramatically in the last fifty years, include the more likely avoidance or termination of execrable, unjustified, immoral, dangerous or catastrophic courses of action: policies of a kind we have actually suffered, that could not have gained or maintained political support from an aware and adequately informed public because these policies did not remotely deserve it and because in some cases they continue to endanger national and human survival.
Precisely in light of that experience, the burden of proof in our democracy should shift to lie upon keeping secrets from the public rather than on revealing them. Freedom of governmental information should be the rule, the standard and norm, not the occasional result of a protracted and contested process. And in the nuclear era, the survival of a large part of humanity may depend on the spread of democracy far more open than exists in any current nuclear weapons state, starting in our own country.
The creation of a "Doomsday Machine" first in the United States and then in the Soviet Union - nuclear forces on hair-trigger alert capable of destroying most life on earth by producing nuclear winter - and the persistence of these Machines subject to false alarms and accidental detonation a generation after the end of the Cold War has always depended on public ignorance of unconscionable risks, maintained by dangerously effective secrecy systems on both sides.
The point here is not to make the unrealistic claim that no secrets are compatible with or justified and even required under a democracy. Rather it is to recognize that the existing, past and current system and culture and practice of secret-keeping is dangerous and destructive in its effects, massively and urgently so. It needs something far beyond reform and regulation, a reconsideration and institutional overhaul that amounts to a replacement by a secrecy system almost unrecognizably different in its scale and democratic accountability for the secret-keeping that must remain.
As someone who has read hundreds of thousands of pages of classified documents, I would estimate that if a very large random sample of the billions of pages now classified were examined by a panel of well-informed and experienced individuals - not currently employed by the Executive branch or the (largely coopted) Intelligence Committees of Congress nor hoping soon to be so employed-they would judge that much less than 1% of such material that is more than two or three years old deserves to be classified any longer, if it ever did, by a reasonable application of the system's own criteria.
That was the expert estimate forty years ago of one of the most experienced security authorities in the Pentagon, William F. Florence, who had drafted many of the Department of Defense regulations on classification. He testified as an expert witness in Congressional hearings and in my trial that at most 5% of classified material actually satisfied the official criteria of potential relevance to national security (which he had played a major role in formulating) at the moment of original classification; and that perhaps 1/2 of 1% continued to justify protection after two or three years. vi
That would be all the more true if the criteria for classification-as they should, and as was directed for a period in the Carter administration-balanced hypothetical or possible dangers from informing an adversary against a strong general need and right of the public to know.
This is to be contrasted with frequent estimates in critical hearings or studies on classification that as much as a quarter or perhaps "50%" of information currently still classified is "over-classified," and no longer requires special protection and handling if it ever did. In the eyes of Florence (and me) such presumptively shocking judgments are under-estimates by an order of magnitude, perhaps two. True "over-classification" may be ten to a hundred times greater in scope.
There has been an actual large-scale test of these contrasting estimates, whose implications seem never to have been noted in these discussions. The Pentagon Papers which I released consisted of thousands of top secret pages, which were not just a random sample of material ranging from 3 to 26 years old but which represented, in a high proportion of cases, the most "sensitive" and closely-held of top secret documents: crucial national intelligence estimates, JCS recommendations and plans, secret presidential decisions and discussions.
Most of the documents that were selected to be quoted in full or in large part in the studies were not classified top secret inadvertently, carelessly, thoughtlessly, or because they happened to derive from other, more-properly-classified documents or were stapled together with such. They were precisely what any careful staffer or commander would have assigned top secret status and stamp-marks, by the standards of the bureaucracy.
Yet in two years of close search of these documents while I was being prosecuted, the government was never able to identify a line or a paragraph that could convince a judge or a jury that national security had been impaired by my revealing it. In other words, my own prior judgment that no single sentence or page would have that effect, nor all of them together, was confirmed by the government's inability to show otherwise. The percentage of the documents from 1945 to 1968 that was properly classified as of 1971 proved by this actual test to be not 50% or 1% or .05% but exactly 0. And, to repeat, this was not a random selection of top secrets but a highly selected, though huge, collection of "sensitive" documents.
Another way of judging the actual scale of wrongful-not merely "unnecessary'-withholding of information from the public is to look comprehensively at the library of documents that have emerged eventually from safes through the long and tortuous process of FOIA requests, often twenty and thirty years after being written. Look in particular at the voluminous files of declassified documents, by subjects, in the website of the National Security Archive of George Washington University, http://www.gwu.edu/~nsarchiv/
Note when the documents originated and when they were finally released (often after years of appeals). And ask yourself: When should this information have been available to journalists, scholars, Congress, the public? For what fraction of this interval could a solid case be sustained that the value of this information for the functioning of democracy-to understand and evaluate and if necessary change policy and performance, to uphold domestic and international law, to hold officials accountable, to exercise public sovereignty over foreign policy-was outweighed by a need to conceal it from foreign powers? The same questions can be asked of the more comprehensive but still-further-delayed publications of the series Foreign Relations of the United States (FRUS). Oddly, I've never seen this critical exercise suggested, let alone carried out.
What can be asked of these bulk disclosures from FOIA and FRUS should also be asked of every leaked document revealed belatedly in the press. "When should we have known this? By what specious reasoning, and why in reality, was it withheld so long? Who lied to us about this, how were we misled, and why? What interests were served? What does this tell us about our real foreign policy, and the proper role of Congress, the issue of war powers and the possibility of democratic control of foreign policy?"
And finally: "Is there not a need for Congress to investigate the nature and dangers of a secrecy system so prone to abuse and dangerous to democracy?" Historically, all these questions should have been asked in Congressional hearings and by investigative reporters and scholars soon after the Pentagon Papers became public. They were not.
At the same time, the almost exclusive critical focus on "over-classification" or "unnecessary classification" is misleading in two important respects. First is the much-quoted, mistaken proposition, expressed by Justice Potter Stewart in his Pentagon Papers decision, that "When everything is secret, nothing is secret." In other words, indiscriminate use of the secrecy stamps supposedly breeds carelessness and near-contempt for the secrecy constraints, resulting in too many leaks, or the president's alleged inability to keep any secrets reliably or very long out of the newspapers.
That misconception is virtually a cover story, concealing and reinforcing the actual ability to keep important secrets that are known to hundreds or more insiders-like plans and preparations for escalation in Vietnam in 1964-65, or for aggression against Iraq in 2001-2002-thoroughly secret from Congress and the public as long as necessary to produce the desired faits accomplis. vii
Second, critical focus on the huge mass of classified data that "does not need to be protected" (any longer if it ever did) distracts attention from a far more important problem: the smaller but still vast amount of data that is guarded from the public with the utmost concern by the executive branch because Congress and the public urgently needs to know it: to fulfill the promise of democracy, to hold officials accountable, indeed to protect our society's own well-being and security.
In reality, the apparatus of secrecy serves in very significant part to conceal-from American voters, Congress, courts-policy errors, recklessness, violation of domestic and international law, deception, crimes, corruption in various forms, questionable or disastrous judgment, responsibility for catastrophes. The motivations for classifying these are real and strong, not just a reflection of carelessness. But they have to do with considerations of domestic and bureaucratic politics and blame-avoidance, not at all with true national security.
Although formal regulations supposedly forbid the use of classification to conceal crime or embarrassment, these uses of the secrecy system are not occasional aberrations or mistakes or "abuses." In the eyes and practice of high-level office-holders, military and civilian, that system has no more frequently relied upon, more highly valued purposes than these. To a very large extent, that is what the system is for. And what it delivers.
As an urgent matter, the existing secrecy system should be radically contracted and monitored, its current contents generally released (American "glasnost"), its presumptions debated, challenged and changed. I have longed for that process to be launched for forty years, never more so than now. But of course, it is not about to happen. Not in anything like the climate of the last decade, in the continuing aftermath of 9-11, multiple wars in the Middle East, and the expansion of executive powers-the latter unconstitutional, it seems to me and others, virtually coup-like-that has persisted into the present administration .
III) Desiderata for a democratic secrecy system
What would a better secrecy system in a democracy look like? Even to address that question at this time is the very definition of wishful thinking, building castles in the air. But why not? Let's take a moment to be utopian and consider some features it might have or omit, without asking what we could get from this Congress and this president or the next.
(a) It would, by the premises above, be very much smaller. A system that withheld, more than a few years, only 5% or 1% of what is now guarded in safes would not be a "reformed" system, it would be an entirely different system. It would reflect a strong presumption against secrecy (outside the special categories mentioned in earlier end-notes) beyond a very limited period: automatic declassification for most information after an interval closer to three years than ten.
(b) There would be no legislated equivalent to a broad Official Secrets Act, of the British-type (passed for the first time in October 2000 but vetoed by President Clinton), criminalizing all unauthorized disclosure of classified information. Except for the information already covered by narrow criminal statutes-communications intelligence, nuclear weapons data and identities of clandestine agents-there would be only administrative sanctions for leaks, not criminal penalties. Hence, no grand jury subpoenas for journalists to reveal sources (outside the categories of information covered by existing statutes).v
(c) Legislated whistleblower protection-prohibiting administrative sanctions, let alone prosecution- for all federal national security employees giving classified information non-publicly to any or all members of the Intelligence Committees of Congress (not just the "gang of four"), or to ranking members (at least) of the Armed Services, Foreign Affairs and Budget Committees.
Ideally, the Intelligence Committees themselves should be investigated and reformed, having fatally compromised their "oversight" functions in favor of protecting the intelligence community and keeping its secrets. But at least, there should be immunity from prosecution for informing these others committees of classified evidence of fraud, deception, waste, corruption , illegality or dangerous risk-taking.
(d) Effective whistleblower protection to all federal employees, not vitiated as at present (and past) by appointments of personnel and Inspector Generals who are hostile to whistleblowing.
(e) Immunity from prosecution for revealing what reasonably is judged to be criminal behavior to the press as well as to Congress , prosecutors or courts: this to include information formally covered by communications intelligence clearances (see revelations of illegal NSA warrantless wiretaps and surveillance) or SAP's (see torture and rendition to torture states and sites).
(f) Resuscitation of the Freedom of Information Act process-as a start, to levels attained in the Clinton administration (reversed under George W. Bush)-with adequate personnel and budget for prompt response, and with newly effective procedures for appealing decisions.
(g) Congressional limitation of the "state secrets privilege," after thorough investigation of past practices and abuses; skepticism and independent judgment of executive claims of the needs of secrecy by courts.
h) Enforcement of criminal sanctions for lying to Congress by civilian or military officials.
(i) Legislated inclusion in all secrecy agreements, at every level of secrecy: " I understand that nothing in this agreement obliges me or permits me to give false or misleading testimony to a committee of Congress or a court, or in particular to commit perjury under oath." ix
(j) Required briefing of all federal employees, military officers and members of Congress on the operational implications of the Oath of Office they all take, to "support and defend the Constitution of the United States," with focus on the potential conflicts they may face between this overriding oath and their superiors' and their own understanding of the requirements of secrecy agreements and obedience to orders.
(k) To the same end: reinstate the Federal Code of Ethics legislated in 1958 and brief all federal employees on its first two paragraphs in particular: x
"Any person in Government service should:
1. Put loyalty to the highest moral principals and to country above loyalty to Government persons, party, or department.
2. Uphold the Constitution, laws, and legal regulations of the United States and of all governments therein and never be a party to their evasion."
There have been as many indictments for leaks during President Obama's first twenty months as under all previous presidents combined: a small number, three. The prosecution of Tony Russo and myself by President Nixon, 1971-73 was the first ever, ending with dismissal of charges on grounds of governmental misconduct. Two other presidents each brought one case: Samuel Loring Morison in 1984 under Reagan, the one person so far convicted of unauthorized disclosure by a jury; Larry Franklin (who pled guilty), Keith Rosen and Steve Weissman of AIPAC in 2005 under George W. Bush, prosecution dropped by Obama in 2010.
Obama so far [as of 9-17-10, when this was first published] has brought three indictments, two of which have been for acts committed under the previous administration which the Bush DOJ had not indicted: Thomas Drake, for leaks on NSA waste (trial pending) and Shamai Leibowitz (guilty plea). The third is that of Bradley Manning, accused in military court of leaking the Apache helicopter attack video and possibly a large number of classified cables and reports to Wikileaks.
[Note 12-28-12: The number of indictments for leaking brought by President Obama is now seven (with another grand jury sitting evidently targeted on Julian Assange and others associated with Wikileaks: perhaps having arrived at a sealed indictment): more than twice as many as all other presidents combined. The last four were for Jeffrey Sterling, Steven Kim, John Kiriakou, and James Hitselberger (charged with possession of classified documents).]
On the legal context in which there have been so few cases brought (with one jury conviction) prior to 2009--thanks to our First Amendment, we have, as yet, no British-type Official Secrets Act explicitly criminalizing all unauthorized disclosures of classified information--see the references in end-note viii below.
ii. On the nature of clearances and classifications that are effectively higher than top secret, see end-notes v and vi below.
iii. The Sunday Times, February 25, 2006: "Induction into the Mafia's code of silence, or omertà, was graphically detailed in court this week by Michael "Mikey Scars" DiLeonardo. ...
"DiLeonardo broke his pledge of omertà in a fourth mob case by testifying against his former best friend, John Gotti Jr. DiLeonardo said that he vomited every time he strapped on his hidden recording device.
"I was completely distraught," he told the court. "Confused. Riddled with guilt. Breaking every code I knew." He said that he considered suicide. "I started to think about history," he said. "Maybe dying like a good soldier. Thinking about the Romans. Drink a little wine, slit your wrists."
iv. See Daniel Ellsberg, The Next War, Harper's, October, 2006, http://harpers.org/archive/2006/10/0081208
v. See Daniel Ellsberg, "U.S. Nuclear Planning for a Hundred Holocausts," http://www.ellsberg.net/archive/us-nuclear-war-planning-for-a-hundred-holocausts; and Daniel Ellsberg, "Roots of the Upcoming Nuclear Crisis (or, Dr. Strangelove Lives: How Those Who Do Not Love the Bomb Should Learn to Start Worrying)," http://www.ellsberg.net/archive/roots-of-the-upcoming-nuclear-crisis
vi. These estimates are for documents classified top secret or lower: excluding the much smaller but still very large volume of "codeword" material, the "special compartmented information" such as communications intelligence and covert operations mentioned below, end-note ii.
vii. Moreover, information within what might realistically be called "the real secrecy system" higher than top secret - the world of "sensitive compartmented information" (SCI) and "special access programs" (SAP's), including covert operations and communications intelligence-is only rarely leaked at all. That is true even when, on occasion, it urgently deserves to be exposed: like the illegal NSA warrantless wiretap programs by-passing the FISA court between 2001 and 2005, or the deceptive use of NSA intercepts to mislead Congress over the Tonkin Gulf incidents. And it can be held securely (and, as in the latter case, wrongly) for decades; see National Security Archive, Electronic Briefing Book #132 update, "Tonkin Gulf Intelligence "Skewed" According to Official History and Intercepts," December 2005.
viii. Likewise, in view of the prosecutorial and judicial trend to interpret certain paragraphs of the Espionage Act as equivalent to a broad Official Secrets Act--the Obama DOJ has brought seven such prosecutions, compared to three earlier-those paragraphs, 18 U.S.C. (d) and (e) should be repealed. (As I said, I am indulging in utopian thinking here.)
On the trend and its highly problematic (and regrettable) nature, see the two major academic surveys of the legal and constitutional issues by Harold Edgar and Benno C. Schmidt, Jr.: "The Espionage Statutes and Publication of Defense Information," Columbia Law Review, Vol. 73, No. 5, May 1973, pp. 930-1087; and their updating, "Curtiss-Wright Comes Home: Executive Power and National Security Secrecy," Harvard Civil Rights-Civil Liberties Law Review, Vol. 21, No. 2, Summer, 1986, pp. 349-408. Also for background, to see how far we have come (fallen): Melville B. Nimmer, "National Security Secrets v. Free Speech: The Issues Left Undecided in the Ellsberg Case," Stanford Law Review, vo. 26, No. 2, January 1974, pp. 311-33. (As a leading scholar of law of information, Nimmer concluded (p. 312) based on then-prevailing interpretation of the Constitution and legal precedents).
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