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Think Again: Catch-22 Revisited: The Bush Administration and the Public’s “Right to Know”

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While most of the media remains (understandably) obsessed with the hard-fought primary campaigns and a gubernatorial sex scandal torn from the pages of “Peyton Place,” the Bush administration’s defense of torture—reminiscent of the dizzying Joseph Heller masterpiece, Catch-22—is not getting the attention it deserves.

President Bush has vetoed a bill that would have essentially prevented the CIA from engaging in torture, and the move was just upheld by Republicans in Congress. The legislative avenue for reversing the administration’s torture policy has been closed, for now, and all that’s left is the judiciary.

The Supreme Court, of course, has long since agreed with the Bush administration’s Catch-22 argument about its alleged right to torture. To sue the administration, you need to come to us with knowledge. But hey, you can’t have the knowledge because the government is not required to reveal interrogation methods due to national security concerns. “That’s some catch, there, that Catch-22,” observes the novel’s anti-hero, Yossarian. “The best there is,” comes the reply. Works every time…

Withholding information on the CIA’s interrogation methods is a stunning assertion of executive secrecy seen time after time with the current federal government. The Bush administration has used secrecy to inoculate itself against accountability for a series of potentially unconstitutional or even criminal actions. Until the dark veil of secrecy is pulled back, we can’t possibly ensure that the government is acting in accordance with the Constitution.

In the case of Khaled al-Masri, who claims he was abducted in Afghanistan and tortured by the United States, the U.S. government sought dismissal of his case under the “state secrets privilege,” contending that if they revealed any details about al-Masri’s treatment, it would compromise national security. Circuit courts agreed and tossed the case, and the Supreme Court refused al-Masri’s appeals.

Of course, al-Masri’s lawyers, along with the ACLU, argue that the use of state secrets privilege in this case twists its original meaning—the privilege is meant to shield specific evidence in an ongoing trial, not to throw an entire case out the window before it even starts.

The Supreme Court established the state secrets privilege in 1953 in a case brought by the families of three civilians who died in a military plane crash. The families wanted the accident report entered into evidence, but the government refused because the plane was part of a secret mission and had secret equipment on board. The accident report was kept hidden, but the case proceeded. Now, with al-Masri’s case dismissed on state secrets grounds alone, the law is being twisted so as to essentially immunize the federal government in any matter where national security secrets are involved, according to the ACLU.

The protection given to national security secrets has been frequently invoked by the current administration in cases where they wish to remain free from legal challenges. A number of National Security Agency employees told the Wall Street Journal that they are concerned the agency may be “overstepping its authority by veering into domestic surveillance,” but the administration has never been satisfactorily above board about who the agency is monitoring and how, which makes a fair assessment of the program impossible.

The administration dragged its feet on telling Congress anything about the NSA’s spying activities, earning an angry rebuke from Senators Patrick Leahy (D-VT) and Arlen Specter (R-PA) last year when they were debating legislative action on domestic surveillance. The senators’ letter stated, “You have rebuffed all requests for documents and your answers to our questions have been wholly inadequate and, at times, misleading.”

When Bush officials were faced with legislation that would hold telecommunication companies accountable for breaking the law on behalf of the administration, they kept the details of the program secret even while promoting its necessity. “The telephone companies that were alleged to have helped their country after 9/11 did so because they are patriotic and they certainly helped us and they helped us save lives,” White House spokeswoman Dana Perino told the press on February 12. This odd logical knot—they were “alleged” to have helped, but “did so” because they are patriotic—gets at the heart of the administration’s secrecy: it refuses to recognize official recognition of any program whose existence might lead to legal challenges.

As in the al-Masri case, if there is no official knowledge of a program, it cannot be challenged in court. That’s why the administration won’t acknowledge the existence of certain programs or methods even when it implies that they are necessary. The administration actually heralds the idea of warrantless wiretapping, but almost always adds that, by the way, we may not actually be doing any. It heralds the necessity of keeping all options open when it comes to interrogation, but also, we don’t torture. This secretive subterfuge prevents any actual legal or legislative examination of what the government is actually doing.

The Bush administration’s secrecy isn’t just wielded via claims of national security secrets. In more straightforward ways, the administration is trying to keep prying eyes away from its conduct. For example, several White House staffers are refusing to cooperate with a congressional investigation into the U.S. Attorney firings, despite subpoenas demanding their presence.

Most glaringly, as we wrote about here in January, the Bush administration attempted to essentially de-fund the Office of Government Information Services, which handles Freedom of Information Act requests. These routine requests, which allow journalists and the public access to many records and information on the doings of the federal government, were under attack as soon as President Bush took office.

Attorney General John Ashcroft lowered the government’s burden for denying FOIA requests, and the Justice Department began charging exorbitant “administrative” fees for releasing documents under FOIA. There is no conclusion other than that the current government would prefer citizens have as little information about its doings as possible.

While there hasn’t been much in the way of discussion or debate about these tactics in the mainstream media of late, efforts to shine a light on them are more than welcome. Next week, the American Society of Newspaper Editors is holding Sunshine Week, a national initiative aimed at elevating discussion of issues of transparency and the public’s right to know what its government is doing in its name.

To be honest, I haven’t read Catch-22 in some decades, but I remember this: it ends badly.

Eric Alterman is a Senior Fellow at the Center for American Progress and a Distinguished Professor of English at Brooklyn College, and a professor of journalism at the CUNY Graduate School of Journalism. His blog, "Altercation," appears at http://www.mediamatters.org/altercation. His seventh book, Why We’re Liberals: A Political Handbook for Post-Bush America, has just been released by Viking.

George Zornick is a New York based writer.

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