Privacy SOS

How state secrecy protects government agencies from embarrassment, then and now

J. Edgar Hoover's obsession with secrecy is a legacy that scars present-day government agencies.

Often when the government wants to keep something secret, it claims that transparency would endanger national security. We’ve been hearing a lot of this lately in light of the new information about the FBI and NSA’s surveillance activities disclosed to the press by former contractor Edward Snowden. The leaks have caused “grave harm” to national security and even US foreign policy, Snowden’s critics repeat over and over again.

The trouble is, whenever these critics are pressed to prove that Snowden's disclosures have harmed the public interest, they usually do one of two tricky things. On the one hand, some say that the harm cannot necessarily be measured, but is likely to derive from transparency, and that even the possibility of harm is serious enough to outweigh the positive aspects of sunlight in a democratic society. For example, last week ODNI general counsel Bob Litt told a New York audience that national security leakers are like drunk drivers, who may or may not kill anyone, but endanger the public either way. Others say that the grave harms are real and true and demonstrable, but only people with proper security clearance can hear about them.

Both of these frameworks are difficult to accept on their faces. The first amounts to "it might do something bad but we have no evidence" and the second to "it has done something very bad but I cannot prove this to you because state secrets." Neither of these arguments stands up to scrutiny on the basis of logic alone. But we also have plenty of empirical evidence to demonstrate that in the vast majority of circumstances, national security leaks don’t harm the public interest or national security at all, contrary to what representatives of the security state say.

When Daniel Ellsberg leaked the Pentagon Papers, the US government claimed that publication of the documents would gravely endanger national security. Officials tried to stop the New York Times from printing them, citing grave harm. Decades later, pretty much everyone—including Snowden’s fiercest critics—acknowledges that while the papers revealed significant mendacity on the part of the US government, no real security harm came from their publication. In fact, the nation’s security was arguably better off for the transparency.

Spying on dissidents: a state secret?

The government tried to keep secret documents pertaining to COINTELPRO using the same dishonest excuse. In 1972, NBC news reporter Carl Stern saw the phrase “COINTELPRO—New Left” emblazoned on an FBI file activists had stolen from a Media, Pennsylvania satellite office the prior year. He filed a public records request to the deputy attorney general, seeking information about COINTELPRO, a mysterious codename no one he spoke with could define or explain. The Department of Justice denied Stern’s request, stating that, as Betty Medsger writes in her book ‘The Burglary’, COINTELPRO documents were “exempt from disclosure.” Information about the program must “be kept secret in the interest of the national defense and foreign policy,” according to Justice.

Stern appealed to then FBI director L. Patrick Gray. Gray also refused to provide the documents, writing, "This matter involved a highly sensitive operation. It has now been discontinued, but I do not feel that details concerning it should be released since such disclosure would definitely be harmful to the Bureau’s operations and to the national security.” In fact, as Medsger reports, the operations were still in effect.

After one more denial—this time from the attorney general himself—Stern and the Press Information Center filed suit against the Department of Justice. It was the first time a journalist had ever sued the federal government to obtain access to documents under FOIA. Medsger describes what happened next:

Department of Justice lawyers claimed the judge could have no say in the matter because, they said, the federal judiciary lacked jurisdiction over intelligence matters. U.S. district judge Barrington Parker thought otherwise and on July 24, 1973, he ordered the documents be released to him for private inspection. When department officials submitted the files to Judge Parker, it was the first time COINTELPRO files had been seen by anyone outside the FBI. On September 25, 1973, Judge Parker ordered Justice officials to release the files to Stern. At first, the department appealed the order, but acting attorney general Robert Bork withdrew the appeal and turned four pages of COINTELPRO documents over to Stern on December 6, 1973.

These documents contained explosive revelations about Hoover’s FBI’s attack on free speech and association. Stern’s report described how “in a May 1968 memorandum Hoover had informed officials at FBI headquarters in Washington and in key field offices that he had opened COINTELPRO-New Left to “expose, disrupt and otherwise neutralize” the New Left movement.”

Activists, Hoover wrote, “must not only be contained but must be neutralized.” And secrecy was key. “The nature of this new endeavor is such that under no circumstances should the existence of the program be made known outside the bureau and appropriate within-office security should be afforded this sensitive operation.”

Did the release of the COINTELPRO documents endanger national security and foreign policy, as the Department of Justice claimed when it tried to prevent their release? Of course not. Straight out of Hoover’s playbook, officials were trying to keep these records secret to protect the FBI from embarrassment and the political scrutiny that would surely come when Americans realized what the nation's top law enforcement agency was really doing.

Only recently, we learned that the FBI had refused to disclose documents related to the watch-listing of Rahinah Ibrahim, purely to protect itself from embarrassment. The files contained zero information pertaining to national security; in fact, Ibrahim had only been added to a no-fly list because an FBI agent made a clerical error. Nonetheless, the FBI and Department of Justice fought tooth and nail to keep an innocent person out of the United States for 8 years, spending millions of dollars defending its behavior in a lawsuit it tried to duck by invoking "state secrets."

Today, FBI headquarters in Washington bears the name of an obsessive tyrant who went to great lengths to sabotage democracy, and would stop at nothing to keep any and all evidence of that sabotage secret from the public he purported to serve. Some things do not change. When you hear officials and other defenders of state secrecy decry transparency as gravely threatening to national security, remember Carl Stern and Rahinah Ibrahim.

© 2019 ACLU of Massachusetts.