AG Holder announced two leak investigations. These investigations are not likely to address whether government secrecy is abused.
Prosecutors work for the government. They are not policymakers. Prosecutors collect evidence to put people in prison. They do not examine how the weaknesses in government contribute to abuse of government power. Prosecutors do not address how secrecy hides abuse of government power from public knowledge.
The job of examining abuse of government secrecy rests with We the People. We have the power to decide how to remedy the abuse of government secrecy. Indeed, we are not required to wait until this prosecution investigation is over. Governance reforms are needed to prevent secrecy from thwarting public oversight of Congress.
Thankfully, the Framers left open the possibility for the public to peacefully change governance, to better derail abuse of government secrecy.
Debatable solutions include drafting a New Constitution, modernizing how We the People oversee, monitor, and detect abuse of government despite attempts to shield that information, abuse, and unlawful threat behind dubious claims of "state secrets".
News Links
The WP reports Attorney General Holder has appointed two US Attorneys to conduct leak investigations. Also, Politico has a nice summary of the issues.
ABC reports McCain called for investigations, even if they go into Members of Congress or their staff:
"The investigation should go where the evidence take it - be that the White House, administration or Congress," a McCain aide told ABC News.
Politico
reports Senator McCain complained about disclosures of classified information related to the apprehension of Osama bin Laden. A doctor connected with the intelligence collection effort was subsequently prosecuted in Pakistan to 33 years in prison.
This Kos Diary reviewed the difference between authorized and non-authorized leaks.
Nuances: Signs of Creating Confusion
NSA guidance highlights some of the distinctions between unlawful, purposeful, covert, and authorized:
NSA Distinction
"This document does not address the purposeful or covert release of classified information . . ."
That word -- "purposeful" -- is one which is getting some attention in the media:
Politico: However, the president’s use of the word “purposely” to qualify his denial that anyone at his White House leaked seemed to allow for the possibility that officials might have inadvertently released sensitive information.
Let's go back to
Holder's investigation statement, mirroring the nuance about unauthorized, authorized, purposeful, and unlawful disclosures:
The unauthorized disclosure of classified information can compromise the security of this country and all Americans, and it will not be tolerated.
Analysis
Holder recognizes there are "authorized" disclosures which may or may not be "purposely" criminal or unauthorized.
These are interesting questions, but are a distraction from the pattern of government abuse
in secret:
Who "authorized" the disclosures of the classified information;
Were the media in receipt of any non-authorized information;
Do public servants have a duty to disclose information related to unlawful US government activity?
The correct question is,
"How does the government use a leak investigation to distract public attention from the pattern of government abuse which warrants fundamental changes in how power is delegated; and the new methods of public oversight to ensure secrecy cannot be abused to hide unlawful, repugnant, or unconstitutional government activity abuses."
Let's stop focusing on (a) whether Congress will or will not pass a law -- that it doesn't enforce, or thwarts enforcement of with immunity "deals" -- to preserve the Bill of Rights; and focus on (b) discussing the needed changes, improvements, or modernizations in governance to dilute government authority to abuse in secret.
The Framers drafted this Constitution to address, in part, some identified weaknesses of the Articles of Confederation. Readers should have confidence that there are similar efforts today to address the existing abuses:
How is government secrecy being used to
A. Selectively enforce the law;
B. Hide Presidential and Congressional cooperation in violating treaties and statutes, like FISA and Geneva;
C. Thwart public oversight of the Congress, executive branch, and judiciary;
D. Thwart public discussions and efforts to modernize the established order;
E. Derail public knowledge of legal counsel complicity, or failure to remove themselves from unlawful breaches of the Constitution
F. Needed improvements in how the oath of office -- to defend, preserve, protect the Constitution -- is enforced at the Federal, state, and local level
G. How does the government collect information in secret about citizens' efforts to modernize what the existing public servants, law enforcement, and other government officials abuse or breach in secret;
H. How are the rules of evidence -- related to retention, destruction, and discovery -- diluted by allowing intelligence personnel to gather information unlawful as long as that information is "not" used for prosecution
Analysis
Incomplete denials are important: They point to what is most likely occurring. For example, when asked about the NSA domestic surveillance capabilities, the NSA's incomplete denials raised the prospect that there were potential issues of public interest, warranting discovery.
Also, Drake was selectively prosecuted for disclosing information about FISA violations.
The NSA incomplete denials contrast with the prosecution against Drake: It makes no sense for the Intelligence Community through DOJ to have prosecuted Drake for disclosures related to NSA interception capabilities that "do not" exist. [ More discussed here.]
We believe the leak investigations curiously contrast with the inaction related to FISA and Geneva violations after 9-11. It may be true that there is legal parsing to "permit" a disclosure; and that some US government officials are not prosecuted for disclosing secerts.
We believe an appropriate public review should examine whether secrecy -- as an authority of the US government to shield investigations, intelligence, and operations -- is being abused.
This is a separate issue than whether secrecy rules are violated. The question here is whether the government's use of secrecy -- as a power to protect information, and thwart oversight -- is unfairly tilted toward thwarting disclosures warranting public onversight.
We do not subscribe to the theory that secret disclosures to Congress assist with public oversight, because we distinguish between (a) public oversight of the US government -- including oversight of Congress as a separate branch of government -- from (b) public oversight of government through Congress.
We would have more confidence in the usefulness of these leak investigations if they were linked with a track record of aggressive Congressional reviews of abuses of secrecy, not limited to understanding how the President "secretly" worked through the DOJ and telecoms to violate FISA.
However, rather than conducting a review of how secrecy is abused to thwart violations of FISA, Congress immunized the telecoms.
Discussion
Part of the problem rests with the fiction that as long as information illegally obtained is "not" used for prosecution, US government contractors, agents, law enforcement and other "may" use "any" method to obtain information, even if that collection method breaches the Bill of Rights.
The correct approach is to discuss what methods of public oversight of Congress and the US government are required to ensure that the government may not "classify" operations which breach the Constitution, especially when that activity violates rights.
The fiction is that the US government "preserves" rights; and that the Constitution "establishes" rights. No, it is the opposite: The rights we have are not from government, they are rights which are above government, used to create the existing established order.
Part of the problem rests with the debates when the Bill of Rights were first drafted. Some of the framers were concerned that in drafting specific rights, the government was establishing both a line it could cross; and a canard that without that express government action, those rights could be diluted.
However, the Constitution says the opposite: All non-delegated powers are reserved to the States and people. This does not mean that the US government may lawfully engage in unconstitutional conduct so long as that conduct remains secret.
Rather, We the People have the larger power -- retained, and not delegated -- of using appropriate methods to gather information related to domestic threats to the Constitution, especially when the express intent of that peaceful activity is not to conduct litigation, but to conduct oversight.
In other words, as long as government uses secrecy to abuser power, there must be a matching -- non-delegated -- power of We the People to monitor, detect, and thwart that abuse. That public power must include a matching power to collect information not for foreign intelligence purposes, but for domestic Constitutional compliance.
Government made the error when it argued that unlawfully captured information may be retained when the "substantial" purpose of that government activity was for non-prosecution; or for lawful objectives. There must be a matching authority which similarly casts the activity of We the People as "substantially" intended to defend the Constitution against the domestic enemies abusing government secrecy.
For example, it's an abuse of power for the executive branch, in secret, detains people without giving them access to legal counsel. The error is to say that the limitation only rests on Congress.
The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
This should not be correctly interpreted to read as only a limitation on Congress; but should also include an express prohibition on all government agents, contractors, and personnel: Nothing can be done to deprive anyone of
Habeas, unless Congress has stated in public that certain conditions are met.
Conclusion
It is incorrect to believe We the People should wait until the results of these leak investigation before discussing needed changes to the system of governance, and the abuses hidden in secrecy. Federalist 78 leaves open the possibility to create, discuss, and modernize the government:
New Constitution Authorized With Solemn, Authoritative Act
Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act.
Federalist 78
Disclosures of classified information can serious, or they can be part of political theater. Just as the selective investigation and "concern" about the disclosures.
The deeper issue isn't simply whether there are leaks, but what governmental abuses cannot be handled within the existing reporting system; but deserve, require, or compel a public review outside Congress.
Further, the issue isn't narrowly with whether information is disclosed, but how US government operations -- which may or may not be lawful -- are being shielded from both Congressional and public oversight.
Leaks can be real indicators of what abuses are falling outside the contours of the Constitution.
Good reporting can call public attention to the scope of those abuses, especially when the established order does not adequately constrain power, address deep-rooted abuses, nor challenge emerging tyranny.
Secrecy isn't just about conducting national security affairs in secret. It's also a question of whether that government activity would survive Constitutional review in the courts, not just public review of governance.
However, where secrecy is abused to thwart public understanding of Constitutional defects, there cannot be a coherent public discourse on needed reforms to the established order.
The public needs information about what is or isn't working in governance. Until the public has information about what is failing, there cannot be an informed public debate.
However, the public is not constrained to keeping silent, nor are its hands tied. Where there is an absence of information -- where there should be information -- the public can make adverse inferences: Secrecy is being improperly abused to delay when the public learns of government abuses.
That is a different issue than whether secrecy is being abused; or whether a given disclosure or publication does or doesn't breach the criminal statutes on information protection.
We encourage the public to review not just the details related to leaks, but whether the secrecy is being abused; and what types of governance reforms should be on the table to modernize public oversight of this Constitutional Republic.
We do not believe the US government, court officers, or Members of Congress have adequately justified public confidence in removing from the table the option of not merely amending the Constitution, but in redrafting the same to better address government secrecy abuses.
We believe the appropriate lens to review these issues -- secrecy, leaks, reporting, government abuses in secret, failed oversight, lack of information for the public -- should be viewed through a larger frame: How are the existing Constitutional contours undermined; what remedies are required when redrafting a New Constitution which address these concerns.
We believe the public does need not wait until Congress or the US attorneys produce another finding; but can proceed with a parallel discussion:
How are government powers being abused in secret;
What Constitutional oversight is thwarted in the abuses of secrecy;
How might a new Constitution be drafted to better thwart government abuse of power in secret;
How has Reynolds improperly assigned authority to the US government to engage in breaches of the established order: This Constitution.