Moving Past Slogans In The CIA Controversy
Aitan Goelman is a partner with the law firm Zuckerman Spaeder. He spent nine years as a federal prosecutor with the United States Department of Justice. He was part of the team which prosecuted Oklahoma City bombing suspects Timothy McVeigh and Terry Nichols.
Sunlight, it is argued, is the best disinfectant. And that argument has become the rallying cry of the far left reacting to the Obama Administration's pledge to fight the release of CIA materials documenting "Bush era" interrogations. These critics cry hypocrisy, pointing to statements by President Obama himself calling for greater transparency in government. The disinfecting power of sunlight makes for a nice slogan, but as the Administration realizes, is not always realistic when it comes to protecting the lives of Americans from foreign threats.
This reality was made clear earlier this week, when CIA director Leon Panetta objected to the release of certain CIA materials documenting the use of "enhanced interrogation techniques" against top Al Qaeda operatives held in secret CIA prisons. The resistance to the ACLU's Freedom of Information Act ("FOIA") lawsuit no doubt disappointed some key Obama allies, but the constraints of reality and security are moving the Administration to the middle ground, right where they should be.
The President is responsible for balancing the goals of openness, transparency and accountability with the need to protect national security. America is a superpower with an intelligence service whose mission is global and techniques are necessarily shadowy. The ACLU and its allies, while they do not directly challenge that premise, have never seen a FOIA request that shouldn't be granted. The fact is, some things must remain secret until their release no longer poses a national security risk. The key is finding the right balance.
Most of the documents at issue in the Panetta Declaration have been designated "Top Secret," an official government classification signifying that their release "reasonably could be expected to result in exceptionally grave damage to the national security." There is no doubt that the federal government's classification system is subject to abuse, but we also must entrust a certain level of faith in our leaders, especially those who have earned it. Panetta, a man with strong credibility on both sides of the aisle through decades of public service, has submitted a sworn statement, under the penalty of perjury, saying the materials would cause "exceptionally grave damage" to national security. Panetta warns of the potential for more attacks on U.S. service people in Iraq and Afghanistan and an uptick in attempts by Al Qaeda to attack American civilians.
Declassification of these documents would also reveal the locations of former CIA secret prisons in unidentified foreign countries, disclose American interrogation strategies still in use even after the abandonment of EITs, and could even result in the identification of CIA operatives. What are the chances that foreign countries would cooperate with U.S. intelligence services on sensitive operations in the future if they knew they could later be outed by an American court? What are the chances of the CIA being able to recruit talented operatives if they know they could be publicly identified at a later date, potentially subjecting both themselves and their families to very real danger?
President Obama has repeatedly stated that potential embarrassment is not a legitimate reason to resist disclosure. But that doesn't diminish that fact that what may be embarrassing can sometimes also cause serious harm to our national security. Considering that the materials in question are from the "Bush era" suggests that more deference should be paid to the government's position, not less. After all, it is often easier, and even politically advantageous, for an incoming administration to release documents that portray the previous administration in a bad light. The fact that the Obama administration is opposing release suggests that the government's position is based on genuine national security concerns and not a bid to avoid embarrassment or political criticism.
Issues of transparency in national security must be handled with the goal of finding a balance. Open government and rolling accountability are important principles, but America cannot jeopardize the safety of it citizens in a noble, if misguided, effort to disinfect its intelligence agencies. Will release of the memos really cost American lives? Most of us have no idea - including the ACLU. But those whom we have elected to make these difficult judgments certainly think so. The fact that the ACLU is blasé about the risks of release should give the judge little comfort. After all, if the ACLU wasn't attacking an administration for secrecy, that would be a pretty fair indicator that that things were skewed a little too far to one side.
By Aitan Goelman
Special to CBSNews.com