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Gold9472
02-10-2013, 11:34 AM
Mishandling the truth: How the government treats secrets can change our view of history

http://blog.nj.com/njv_editorial_page/2013/02/mishandling_the_truth_how_the.html

By John Farmer Jr.
on February 10, 2013 at 5:27 AM, updated February 10, 2013 at 5:28 AM

On its individual merits, the 30-month sentence imposed last month on former CIA officer John Kiriakou seems straightforward enough.

The investigation followed Kiriakou’s open discussion of the CIA’s waterboarding of terrorist suspects, but led eventually to his admitted disclosure of the name of another CIA officer to a reporter, in clear violation of the Intelligence Identities Protection Act. Although the reporter never made public the officer’s identity, and Kiriakou claims to have believed the officer had retired, in fact the officer was, at the time of the disclosure, on active duty overseas. The national security risk in disclosing the identity is clear.

Fair enough.

Or is it?

To view the Kiriakou case strictly on its own merits would be to ignore the broader context in which it arose. That context reveals a pattern of government conduct, extending over a decade, that calls into question not only whether public discussion of national security issues has been and will be informed by facts, but ultimately whether writing an accurate history of our time will even be possible.

Although "leaks" have long been the currency in the relationship between the government and the media — witness last week’s leaks of a Justice Department memo regarding drone strikes and drone base locations — prosecution of leakers has been rare. The Obama administration, however, in some instances continuing investigations begun under President George W. Bush, has prosecuted twice the number of people for "leaking" classified information to the news media than all prior administrations combined.

This trend is troubling, because the government has not been otherwise forthcoming to Congress or the public. Unfortunately, leaks have been the source of public awareness of the use of "enhanced" interrogation techniques such as waterboarding, the existence of a domestic warrantless wiretapping program, and — now — the legal justification for expanding drone bases and strikes. The aggressive prosecution of such disclosures will almost certainly chill discussion of future government conduct that skirts the edge of legality.

Where the executive branch has unfettered discretion to decide what information is secret and which people should be prosecuted for its disclosure or destruction, the potential for arbitrary or — worse — vindictive prosecution is patent. Consider the Kiriakou sentence in light of other prosecutorial decisions.

9/11 INFORMATION WITHHELD
The 9/11 Commission’s attempts to interview the alleged 9/11 conspirators were denied on national security grounds. Accordingly, the 9/11 report contains the caveat that the commission relied on interview summaries and attempted to corroborate the statements from documents or other witness statements, and the report notes explicitly where its narrative depends on such accounts.

We now know, however, not only that the detainees were questioned using enhanced techniques such as waterboarding, but also that many of those sessions were videotaped, and that the tapes were destroyed. This clear instance of obstruction of justice was investigated by the Justice Department, and the decision was made not to prosecute the destroyers of the tapes.

As a result, debates such as the one occasioned by the release of "Zero Dark Thirty" about the efficacy of enhanced interrogation in prosecuting the war on terror will be forever uninformed by the best evidence of what really happened.

The commission’s investigation of the events of 9/11 itself disclosed substantial disparities between the account given publicly by the Bush administration before Congress and the records of the day, which the commission obtained ultimately under subpoena. At the conclusion of the commission’s work, referrals were made to the inspectors general of the Defense and Transportation departments for further investigation. Although the inspectors general found the disparities "inexplicable" in light of the clear primary evidence, no one was referred for prosecution for the false statements.

LOST PAPERS, LIGHT PENALTY
Finally, in preparing for his commission testimony, former Clinton National Security Adviser Sandy Berger removed classified documents from the National Archives by stuffing them in his clothes, secreted them at a construction site near the Archives, went back and removed other classified documents, then brought all of the documents home and shredded them.

This is as egregious a trespass on history as one might imagine. Those documents, and the truths they reflected, are lost forever. We are left instead to wonder what was so damaging in those documents that it was worth the risk to a sterling reputation and career, and to personal liberty, to steal and destroy them. What was so damaging to him or the administration that he was willing to risk his career so that we’d never find it out?

The 30-month prison sentence given to John Kiriakou is understandable, given the gravity of his disclosure. But how can such punishment, which resulted in no harm, be squared with the treatment given to Berger, whose offense compromised our very history but whose plea bargain required no jail time at all? The former national security adviser pleaded to a misdemeanor; even the loss of his national security clearance was temporary.

If every prosecutorial decision sends a message about law enforcement values, the message conveyed by the decisions of the past decade could not be more clear. Vital primary evidence of inestimable historical value can be destroyed with little or no consequence. Congress can be misled with little or no consequence. Disclose the existence of programs of debatable legality and dubious morality, however, and you will be placed in grave peril.

Jack Nicholson expressed the prevailing attitude underlying these exercises of prosecutorial discretion when he thundered, as Marine Col. Nathan Jessup: "You can’t handle the truth!"

Perhaps. But the question raised by the government’s penchant toward secrecy, its prosecution of people who reveal the truth, and its lenient treatment of people who destroy critical evidence, is not whether we can handle the truth, but whether, even in the fullness of time, we will ever learn it.