This is exactly the sort of situation that would an encourage a reluctant leaker to step forward.
If a Senate or CIA employee decides to leak an unredacted copy of the 6,000-page report on the brutal torture of numerous human beings under President George W. Bush, there will be dismay among many national-security officials, D.C. think-tank employees, and establishment pundits. They'll be unable to understand what radicalized the leaker enough to break his word or risk her freedom.
But I will understand. It isn't that I want the unredacted report published in full. If charged with wielding the black pen myself, I'm sure there are passages I'd strike: clauses that could credibly endanger lives, for example, yet add nothing important to the civic debate about torture or the historical record. Even so, if I worked on the Senate Intelligence Committee or at the CIA right now, I'd look at the news and feel reaffirmed in my belief that a Jane Mayer, Charlie Savage, Glenn Greenwald, or Barton Gellman would be far more likely to publisheverything in the public interest and no more than the U.S. government.
It isn't just that reporters have a better historical track record than bureaucrats when deciding what ought to be suppressed and what should be public. It's that the recent behavior of the White House, the Senate, and especially the CIA is appalling.
We're witnessing egregious dysfunction.
To review, the CIA tortured prisoners, violating a longstanding moral taboo as well as international law and U.S. law. In doing so, they lied to their overseers about the particular techniques they were using, as well as the efficacy of those techniques. And all of this has been acknowledged by the president of the United States.
Years later, the Senate committee that oversees the CIA spent millions of taxpayer dollars and years of scarce staff time to compile a comprehensive report on this torture.
Then all of the following occurred:
- The report was kept secret long after being completed.
- President Obama assigned Director of National Intelligence James Clapper, who recently lied under oath in front of the Senate Intelligence Committee, to head up the executive branch's painfully slow declassification review.
- The CIA was given a lead role in the process, giving the black redaction pen to the very—perhaps the same people—whose illegal acts are under review.
- Meanwhile, it emerged that the CIA spied on its Senate overseers as they were compiling the report, lied about doing so, erroneously accused Senate staffers of having committed a felony, and got caught in all these misdeeds.
- Obama reacted to this malfeasance under Director John Brennan, himself a CIA staffer during the illegal torture, by complimenting his performance as head of the agency.
- It is unclear if anyone at the CIA will be fired over this.
- And when the executive branch concluded the torture-report redaction process, the results were predictable: Even Senator Dianne Feinstein, normally an extreme defender of the national-security state and a staunch advocate of state secrets, believes that too much of her committee's work has been redacted. Nearly two years after the committee approved the report, its release is again postponed indefinitely.
Why would anyone maintain faith in official channels when this is how they work? Even Feinstein, who is on the right side of this particular issue, is abdicating her responsibility to the public. She knows that more of the torture report should be released than the executive branch wants to release. She believes making this report public will make the U.S. less likely to torture again. At this point, she is under no illusion about the CIA's willingness to use dirty tactics in its suppression attempts. Just as Senator Mike Gravel read the Pentagon Papers into the record, making use of the Constitution's Speech or Debate clause, Feinstein is perfectly capable of getting a version of the torture report, with whatever redactions her committee feels is appropriate, to Congress and the people.
If I were a Senate or CIA staffer, I'd be agonizing about whether I ought to leak this report to more responsible parties as the lesser of two evils. While I believe the rule of law has great value, it's hard to argue that it is enhanced if classification statutes are followed strictly, with the result that America's intelligence bureaucracy is better able to hide its torture and tell lies about its efficacy (in part because the CIA's lawbreakers still fear being prosecuted for torture).
As Andrew Sullivan put it, "Either the rule of law applies to the CIA or it doesn’t. And it’s now absolutely clear that it doesn’t. The agency can lie to the public; it can spy on the Senate; it can destroy the evidence of its war crimes; it can lie to its superiors about its torture techniques; it can lie about the results of those techniques. No one will ever be held to account. It is inconceivable that the United States would take this permissive position on torture with any other country or regime."
If following classification rules abets that result, civil disobedience becomes more likely and more justified. Those who lament leaks would do well to understand who is creating the conditions for them: Obama, Brennan, Clapper, and an out-of-control CIA. Efforts to suppress the truth from Americans creates an understandable determination in some patriots to make sure that the truth outs, one way or another, because a system of classified secrets is never so illegitimate as when it is being used to suppress illegal and immoral government misdeeds.