Emily Badger speaks to Geoffrey R Stone on what could be the US’s single most important civil liberties issue in the age of the War on Terror
First Amendment scholar Geoffrey R Stone wrote for Index back in 2008 that the American public’s right to know had been one of the greatest casualties of the Bush Administration. A previous colleague of Barack Obama at the University of Chicago Law School, Stone had high hopes that the new president would reverse many of his predecessor’s damaging policies. That has not exactly been the case. This week, Stone sat down with Index to assess Obama’s record on transparency, which, he concludes, may be the single most important — and fragile — civil liberties issue in the age of the War on Terror.
Index: When you wrote for Index at the end of the Bush Administration, the state of the public right’s to know had largely been damaged by government secrecy. At the time, what were you hoping would happen under the Obama Administration?
Stone: I was hopeful that when President Obama took office he would have a much more open sense of the importance of the actions of government being made transparent to the American people. Certainly, that was a theme in his campaign. So I think it was reasonable to expect major change in some of the Bush-era policies.
Stone: Right. Most notably, the President has changed the standard for the classification of information. Under President George W Bush, the prior standard was expanded to allow greater classification, so that any material that, if disclosed might have harm to the national security, was to be classified. Under the Clinton Administration, and now under the Obama Administration, the standard was changed to say that classification was permissible only if the potential harm to the national security outweighs the value of the disclosure of the information to the public, which is a more appropriate way to strike the balance between the need of the public to know, and the need of the government to keep things confidential. So, in some respects, the Obama Administration has made significant progress. But in lots of other areas, I think it’s been disappointing.
Index: Can you walk through those areas?
Stone: One of those areas has to do with journalist-source privilege. Forty-nine states and the District of Columbia provide a privilege to journalists not to disclose the identities of confidential informants, either at all or unless the government could show a very substantial justification and need for the identities. The federal government does not have such a privilege. Obama was a supporter of the bills in Congress to create a federal privilege, but since taking office, he’s been much more skeptical about it and has essentially suggested it should not be adopted if the information would be potentially harmful to national security. As a consequence, nothing has happened, no legislation has been enacted, and that’s quite disappointing.
Another area where he’s been less transparent than people had hoped had to do with the issue of whistleblowers. Federal law does not give any clear protection to whistleblowers in the national security context, and yet there are certainly circumstances – for example, where a whistleblower reveals information about illegal government policies, or reveals information about highly wasteful or incompetent government action, or simply reveals information that’s of grave importance to the public — where there should be a clear privilege for whistleblowers to expose that information without risk of prosecution. Once again, the legislation simply has been stalled in Congress. The President has not made any effort to push it along, and indeed has prosecuted several people in circumstances that are problematic.
The third area where he’s been disappointing has been in State Secrets. The State Secrets doctrine has been around almost 60 years, and it means that the federal government can refuse to reveal information in litigation if the information may be harmful to national security, and indeed can simply close down the litigation if it feels it can’t adequately defend itself without revealing the information. If, for example, someone sues the government claiming that the National Security Agency’s surveillance program initiated under President Bush violates federal law, what the Bush Administration did was to essentially assert that that litigation could not go forward because the only way that we could defend the legality of our policy was by revealing information to the court that would, if revealed, harm national security. And the Bush Administration took the position that judges should simply defer to the assertion by the government that there would be this damage. At the very least, it was expected that the Obama Administration would take a much more reserved approach with respect to the use of the State Secrets doctrine and would approve legislation that would limit the application of the doctrine to situations where the judge himself is in a position to evaluate the degree of potential danger to the national security. But, nothing has happened on that, again. The Administration has not moved forward on it and has indeed continued to assert the State Secrets doctrine in situations not dissimilar to that of the Bush Administration.
Index: You’ve mentioned that there are several areas in which Obama’s actions in the White House have been very different from what he said he believed when he was a senator. Do you think that’s because all of these issues look different when you’re looking at them from the White House, or because as president he’s been influenced by people with different views within the security world?
Stone: There are a lot of factors that enter into play. One of them is the sense that, “well now my guys are in charge, so we’re going to behave, so we trust ourselves to do well, and the public should trust us to do well, even if you couldn’t trust George Bush to exercise good judgment on these matters.” So one part of this is that when you’re in a position of authority, you believe your motives are good, and therefore there’s no need for a check on your behaviour. That’s a natural phenomenon, it happens all the time, and I think it plays a role.
Part of it may be that you have a better appreciation of the complexities of the situation than you did before you were inside, and that with that greater appreciation, you in fact wisely changed your position, because you recognised it’s not as easy to do the things you thought should be done when you were outside the Administration.
A third factor is politics. Some of these [positions] would appear to be politically weak on national defence, and even though you believed it was the right thing to do, you might decide that to actually do them when you’re the president would cost you support. Your enemies would characterise you as being ineffectual when it comes to protecting the nation from external enemies. And therefore, you don’t want to expose yourself to that kind of attack, even though you still believe the right thing to do on the merits of the issue, as opposed to larger issue of electability, would be to change the law.
Fourth, there are relationships with other people in your Administration that you have to be cognisant of. You don’t want to alienate unnecessarily – even though you’re the boss – people in your administration, like members of the military or Defence Department by doing what you believe is the right thing and they believe is the wrong thing. You may believe you’re right but decide “I don’t really want to alienate all these people by overriding what they think is their better judgement on these matters.”
There are lots of reasons why these changes [in position] may take place, and some of them are better than others. But I suspect in varying degrees, all of them play a role.
Index: Particularly around the Thomas Drake case, there has been a lot made out of the fact that Obama has been a more aggressive pursuer of whistleblowers than any of his predecessors. Is it fair to characterise him that way, or is that more of a statistical anomaly given that he inherited many of these cases from the Bush Administration?
Stone: I think the latter. My guess is that Obama is not more aggressive; it’s just that he has more cases that are holdovers from situations that arose in the prior Administration. I have no reason to believe that he’s actually being more aggressive than the Bush Administration would have been in the same circumstances.
Index: Do you think that since the administration is actively pursuing the handful of whistleblower cases it has to essentially create a chilling effect on other would-be whistleblowers?
Stone: I think that’s exactly right. There’s no real need to punish these people –– they’re not going to be in the position again to be whistleblowers. If nothing else, they’ve been fired, and never again given a security clearance. So, the punishment of them, and the pursuit of them, is clearly designed to deter others in the future from following their example. You don’t want to be prosecuted and investigated and have your life exposed in the press, and that’s going to make people who are tempted to be whistleblowers to think twice, and three times, before they actually act on it. I think the purpose here is much less the prevention of harm by these people in the future, it’s really about sending a message to other government employees not to do this.
Index: You’ve written a lot about how in past wartimes, the US has made some bad decisions restricting civil liberties – but that we’ve always snapped out of it and later restored rights that were taken away during wartime. The War on Terror seems like a different situation, in that it may not have an obvious end. Given the pattern throughout US history, should we be concerned now that we may be giving up some rights, and it won’t be clear when the time has come that we can have them back again?
Stone: I’ve always been skeptical of the notion of it being a “war without end.” When you were in the middle of World War II, or the middle of the Civil War, you didn’t know when it was going to end. You only knew when it was going to end after it was over. It’s true this is not a conventional war where you can defeat the enemy in as neat a way as you could by capturing the Confederate Army, but I suspect this war will end. And I think the rhetoric of that is blown too much out of proportion on both sides – among those who say “we can’t mess around here because it’ll be a life-and-death struggle as far as the eye can see,” and those who say that “there won’t be an end to this, so we have to be especially wary.” I’m much more closely aligned with the latter. If you believe it’s an unlimited war, or at least a long war, then the message you should take from that is not that we should pull out all the stops –– do whatever you can to win this war, civil liberties be damned –– but that we should be especially cautious.
If you ask, “What are the freedoms that we’ve given up as a consequence of 9/11 thus far?” it’s actually not that easy to identify specific things that are egregious. It’s not like the Civil War, where there was a suspension of habeas corpus throughout most of the United States. Or World War I, where there were prosecutions of anyone who criticised the war or the draft. Or World War II, where we had the Japanese internment.
The issues that are most threatening are the questions of transparency. Because the government can’t any longer suppress dissent, it has an even greater political need to prevent the public from knowing things. Whereas you could once control public discourse by making it a crime to criticise the government, you can’t do that any more, which means you’ve got to really do what you can to prevent people from criticising the government. That’s the instability that’s created here that’s most troublesome.
Guantanamo is a serious concern, and the temptations we fell into –– both with respect to torture and with respect to detention even of American citizens – were very dangerous. But those practices were abandoned pretty quickly. I think it’s the transparency issue that’s the most important, and potentially the most damaging.