Blast from the past. Barry Goldwater chews out the CIA for Whitehouse leaks

Let's take a trip back to 1983 and peek into how classified information is actually treated and used in the high offices of the government.

In 1983 the United States is fighting a proxy war with the Soviet Union in Central America. The President wants to do more, as expressed in his Presidential Findings, but the Congress wants to do less. Of course a lot of this stuff is classified. But, of course, the whitehouse leaks like a seive, as it has always done, because America has a strong tradition of open debate, discussion, and a free press, but perhaps more importantly, a strong tradition of one party trying to pull the rug out from under the other party by fighting it's battles in the media instead of in the legislature.

Senator Barry Goldwater, though, is 'fed up' with the leaks. The New York Times has just published information that was marked Secret. Goldwater tears into William J. Casey, head of the Central Intelligence Agency, rips him up one side and down the other. It is a rather humorous contrast to the normally sonorous tones used between government officials.


At the end of it all, though, Goldwater says "it was probably classified too high anyway". Think about it. You just basically screamed at the head of the CIA, but then you say that the thing you are screaming about is probably no big deal. What does this say about your case? What does it say about the nature of the thing you are screaming about?

That doesn't stop Goldwater from writing an entire paragraph expressing his wishes that the leakers be caught. One wonders what, exactly, he wants to do with the leakers? Leaking classified information is not illegal unless it's a certain type of classified information, and then only in certain circumstances. When the congress has tried to make it illegal, the bill usually dies in committee... because all of the other congressmen are too busy leaking to the press, trying to get their side of the story out on some issue so that they can get the public calling up the congressmen's opponents and threatening to take away their votes. Ain't democracy beautiful?

Leaking is basically a form of public relations work. "White Propaganda" as they might call it. Actually they did call it White Propaganda; there is a memo to Patrick Buchanan, aide to the President, from that era, whose subject line is "White Propaganda Operation" and it's sole purpose is to discuss how the Nicaraguan war is playing out in the media and how they can influence it. You can read it here (from archive.org) .

Oliver North would later, on orders from higher authority, talk to a congresswoman about the Sandinistas running drugs. She leaked the story and a DEA informant, Barry Seal, wound up dead. Nobody was ever punished for this; the release of secret information that led to the death of a US informant. Is that not exactly why Aldrich Ames is in prison? North would later excoriate "the president of the United States and the chief of staff of the White House and the people in the political directorate and everywhere else, that when congressmen and senators start screaming for information, the White House frequently goes and briefs on it. . . . I watched it happen time and time again, where classified information would show up on the front pages of America's newspapers" (Frontline, PBS) However, North's friend Caspar Weinberger would later help put a man in prison for life for leaking; Jonathan Pollard. Pollard leaked to Israel in mass quantities - but did anyone die over it? As far as we know, no. If someone did, wouldn't Weinberger have mentioned it in his screed against him? Pollard would later become a cause célèbre for the likes of Henry Kissinger and Elie Weisel, who urged his release, but Weinberger failed to mention Pollard in his memoir, and called it a 'minor event'. Caspar Weinberger would also later have his own legal problems related to Iran-Contra. Ironically, the great muckracker and leak lover Seymour Hersh has called for Pollard to stay in prison! But I digress. I hope, though, this paragraph proves the ultimate clearness and simplicity of the rules surrounding the treatment of classified information in Washington! Who can say the law is not fair and consistent?

The ultimate irony here, is that the statement Barry Goldwater made in 1983, about 'overclassification', is the same argument that prosecutor William Welch is trying to prevent Thomas Drake's defense team from making in 2011. Drake is accused of 'withholding' 'national defense' information, but the prosecutor is attempting to act like every last piece of 'classified' info Drake had (like a few-pages long memo saying "Great meeting everyone!") would result in a dramatic breach of national security. On top of that, one of the 'classified' documents Drake had was marked 'Unclassified/FOUO'; the prosecutor is claiming Drake should have known it was really classified.

I would wager that if you asked 100 random top government officials if they thought Goldwater's self-checking rant would broadly apply today, and that much classified information "is probably too highly classified to begin with", that a good number of them would pause, turn a little red, look away, shuffle their feet, and say 'no comment, but off the record, hell yes!'.

References

Report of the congressional committees investigating the Iran-Contra Affair with supplemental, minority, and additional views. Goldwater to Casey, page 81, 1987, from archive.org

Report of the congressional commitees... page 44, Jonathan S Miller to Pat Buchanan, report on "White Propaganda" operation. 1983 (archive.org)

Edgar and Schmidt, The Espionage Statutes and Publication of Defense Information Columbia Law Review, 1973 via fas.org

William Welch's argument for banning Drake's defense team from discussing Overclassification, 2011, from fas.org

Oliver North discussing leaking with Frontline, PBS, 2000

Weinberger: Pollard Case "A Minor Matter" Jacob Seidenberg - The Washington Jewish Week - Aug 12, 2002, quoting Edwin Black's "Life Sentence On Technicality" WJW, Jun 20 2002

The Traitor, The case against Jonathan Pollard. Seymour Hersh, The New Yorker, 1999 1 18, jya.com

Save Tom Drake, facebook

Government Accountability Project, Thomas Drake page

Under the Silent Witness Rule, some defendants are more equal than others

In the trial of NSA whistleblower Thomas Drake, the prosecution is attempting to use the Silent Witness Rule, which means that the evidence at trial will be closed off from the public; only the counsel, jury, judge, and witnesses can see it. The rule is rather new. It has only been used in a handful of cases. Essentially, it works by having the evidence available to the judge, jurors, and laywers, but not to the public.

The argument for the Silent Witness Rule (and its old cousin, the Classified Information Procedures Act) is that it will allow cases to come to trial that, in the past, have been thrown out of court due to the government worrying about it's secrets being revealed.

The concept allegedly prevents 'graymail', where the guilty get off free after threatening to reveal secret information in court. However there is another argument for it. Sometimes, citizens want to sue the government and may require sensitive information to be used as evidence. The classic example is the Air Force widows defrauded by the military in Reynolds v United States; they never got a day in court because state secrets privilege disallowed it.

Here is the problem. Look at the theory. Then look at what has happened in actual, real cases.

Khalid El-Masri, a German citizen, was kidnapped, beaten, raped, and tortured by the CIA. Why? His name is El-Masri; there is a terrorist named Al-Masri. They got the name wrong. He sued the government (El-Masri v. Tenet), but his case was thrown out by judge T.S. Ellis III because a trial would reveal government secrets. El-Masri appealed, but the higher court agreeed with Ellis. El-Masri never got a day in court.

When judge Ellis got another state secrets case, US v. Steve J. Rosen (an AIPAC lobbyist), he didn't throw it out. Instead, he decided to get creative and make up a new 'fairness test' that would allow the government to present secret evidence using the Silent Witness Rule. The main difference between this trial and El-Masri's? El-Masri involved a citizen suing the government. Rosen involved the government suing a citizen.

The pattern is clear.

If the defendant is some ordinary citizen, like Steve Rosen or Thomas Drake, then the court can go all loosey goosey with the Fifth and Sixth amendments, due process (which goes back to the Magna Carta), and the right to know the evidence against you.

If the defendant is the Government, however, then the case gets thrown out because it would reveal state secrets. The plaintiff, like El-Masri, never gets a day in court, never gets a 'fairness test' about the silent witness rule, and never gets a chance to present evidence.

The only plaintiff, apparently, who gets to use the silent witness rule is the United States government. How has the government used this advantage? Has it stopped mad bombers, terrorists, assassins, spies, and saboteurs? No. Most of the use of the silent witness rule has been against ordinary citizens, most of whom are simply leakers, or in Drake's case, a whistleblower. The silent witness rule has almost never (if ever) helped convict a terrorist.

Judge Ellis has said that he has no power over deciding which cases the government chooses to bring to trial, and which it does not. He does, however, have the power to decide which cases get thrown out, and which get heard. In his choices on Rosen and El-Masri, he has decided that when the government is sued, we have to worry about state secrets being revealed, but when a citizen is sued by the government, that worry goes out the window, and we can bend the Fifth and Sixth amendments into innovative new shapes to fit the desires of the prosecution.

Judge Ellis is fond of lecturing people about the Rule of Law. When he reduced Larry Franklin's sentence in 2009, he forced him to give talks to school kids about the Rule of Law. Ellis' point is that government employees shouldn't decide, on their own, when a law is valid and when it is not. Under Lex Rex, we are a nation of laws and not of men, and everyone should be equal before the law.

When it comes to the silent witness rule, though, it would appear that some defendants are more equal than others.

--- Update May 2011 ---

There has just been yet another case in which alleged torture victims never get a day in court against the torturers because of State Secrets Privilege. Again, the Silent Witness Rule didn't help them, at all. The alleged torturer is Jeppesen Dataplan, a division of Boeing that was working for the US Government.

This time the plaintiffs are five, including Binyam Mohamed of Great Britain.

References

Supreme Court Declines Rendition Torture Case Involving ‘State Secrets’, By David Kravets, Wired.com, May 17, 2011

Save Tom Drake, facebook

Government Accountability Project, Thomas Drake page

TS Ellis' decision to throw out El-Masri v Tenet due to state secrets: from pitt.edu 2005

TS Ellis' decision to allow the silent witness rule, US v. Rosen: from fas.org

TS Ellis' 'rule of law' comments at Franklin reduction-of-sentence hearing: from fas.org 2009

William Welch's motion to use Silent Witness Rule in US v Thomas Drake from fas.org

Graymail wikipedia

"The Muted Rise of the Silent Witness Rule in National Security Litigation", Jonathan Lamb, ssrn.com 2008

DoJ to use secret code in leak trial, Josh Gerstein, Politico, 2011 3 10 (Drake case)

Animal Farm, George Orwell, 1946

Magna Carta (archives.org) 1297

AIPAC Court Adopts Silent Witness Rule, Steven Aftergood, Federation of American Scientists, 2007 11 7

Disclaimer: I am not a lawyer. By reading this you agree I am not responsible for any use of this article by anyone.

In my spare time between blowing up Nicaragua (laughs)

North: "I have already met with the Kuwaiti foreign minister, secretly."

Hakim: (interprets for ███████)

North: "In my spare time between blowing up Nicaragua (laughs)"

Oliver North, 1980s (archive.org, Congress' Iran-Contra report)

dried up

"An estimated 28,000 newspaper jobs were lost in 2008-09. In addition, many sources dried up, fearing publicity would make things worse,"

user 'pragmaist' review of Bad News: How America's Business Press Missed the Story of the Century, amazon.com