Secrecy, Surveillance, and Public Safety

WASHINGTON, DC - MAY 15: Attorney General Eric Holder faces the House Judiciary committee about journalists phone records and
WASHINGTON, DC - MAY 15: Attorney General Eric Holder faces the House Judiciary committee about journalists phone records and IRS improprieties, on May, 15, 2013 in Washington, DC. (Photo by Bill O'Leary/The Washington Post via Getty Images)

Three scandals have converged in the past week to preoccupy Congress and the press. Benghazi was the first to come, and it has surprised by its staying power. The larger issue in the background -- the wisdom of the NATO destruction of the government of Libya which left an open field for anti-American militias -- will probably never be discussed; and within the bounds of the intervention policy, it is unlikely that a satisfying American culprit will emerge. The abuse of power by the IRS may be, in the long run, the most damaging of these cases for the Obama presidency, but its outlines are only beginning to emerge. It is possible that IRS functionaries acted as they did without any systematic guidance from the top of the service; and possible, too, that over the many months of the harassment of anti-Obama groups, the executive branch never caught wind of the trouble and is as stunned as the rest of us. But the ugliest of the scandals has come from the revelation of the justice department's seizure of two months of phone calls by 100 Associated Press reporters. This was done to investigate the leak of a thwarted terrorist plot which the government itself had already decided to disclose in public.

Different as they are, the scandals all point to a single disorder that afflicts the Obama White House and the Holder justice department. The name of the disorder is paternalism, and its leading symptoms are suppression and secrecy. Paternalism is the ideology proper to a government that treats the governed as children. The duty of a parent toward a child is, above all, to protect him and assure his safety. Similarly, the duty of the paternal state is to prolong the lives and secure the health and prosperity of the people. The happiness of children also depends on conditions that favor a long life with minimal risk. Children, of course, may want to know many things they are not yet ready to know; but the role of the parent, when an inappropriate question is asked, must be to inform the child that there is a kind of knowledge he is not yet capable of using well. So too, there are risks to a people that only a government can rightly measure.

Of the national security state that we have come to know since 2001, the architect was Dick Cheney, but much of the building was put in place by Barack Obama. This initially puzzling truth has struck anyone who looks at the perpetuation of the offshore prison at Guantanamo, the serial prosecutions of government whistleblowers, the use of the state-secret exception in court cases, the president's secret killing days ("Terror Tuesdays") to order drone assassinations, along with other anti-constitutional abuses which the present administration both inherited and extended. The continuity explains why so many spokesmen of the far right, including Cheney, have left the president largely unmolested on security issues and have even praised his wisdom.

The continuity from 2001 to 2013 explains some other things. The extreme secrecy that prevails in and around the Obama White House was itself a secret until recently -- kept by a docile press that hoped for better treatment in the future. David Cay Johnston has said that when he made his first calls to the White House in 2009, seeking comments or enlightenment on simple matters, the phone was always answered by suspicious factors who, when he asked for their names, would reply "Why do you want to know?" They refused to give their own names for the purpose of identification. A veteran journalist and historian of press freedom, Johnston rates the Obama White House lower than the Bush White House on the scale of transparency. This has been so, it appears, from the very first and not just as an understandable reaction to the rise of the Tea Party. A protective opacity fell in naturally with the sense of responsibility that weighs on paternalism everywhere and at all times. In the past few weeks, public figures as levelheaded as John Podesta have begun to describe the White House as a closed environment whose paranoia is doing active harm to American democracy.

The corruption of power may come over governments, as it comes over parents, through a sense of the absoluteness of their responsibility. Doubtless the event most dreaded by Eric Holder and Barack Obama is not the destruction of the first, fourth, fifth, or sixth amendment, but the occurrence of a terrorist attack in the U.S. by an external agent which could be blamed on them. To avoid even one such attack on their watch, they have waded step by step into a regimen of suppression they could never have imagined before they became paternal government officials. And yet they face a curious contradiction. For the president and attorney general serve as the chief magistrate and legal officer of a country whose founding document speaks not only of happiness and life but also of liberty. The moment when all danger is past can never come for any country. It has been part of our national commitment in the United States that liberty is worth some risk. Both Holder and Obama, therefore, have been compelled to speak as if they do not know the cause of the preventive censorship and the menace to individuals that figure as common threads of the Benghazi story, the attainting of groups by the IRS, and the massive seizure of the records of press communications by the justice department.

The president and his attorney general, as they see themselves, are guardians. How could they not protect themselves and scrutinize possible enemies and hunt down mischievous interlopers? Their watch is never-ending, and when they seem to work outside the rules, they do it for our benefit. At the same time, the president and attorney general know that they are thought of as public servants. They have consequently taken extraordinary pains to deny that they are authorities who authorize. Parents teach us that the policeman is our friend, but parents cannot afford to be confused with policemen. The number of times that Eric Holder, in Wednesday's congressional hearing, said "I don't know" has already been widely ridiculed; but Holder also warned his questioners against expecting much more from his deputy attorney general, James Cole. The deputy attorney general does know relevant facts, but, because the investigation is in progress, he is forbidden from any disclosure that might affect the final result.

Attorney General Holder is a bland and unassuming official who is not given to hyperbole. But his actions have been hyperbolic. During the first 92 years of the existence of the Foreign Espionage Act of 1917, three persons were prosecuted. In the first four years of the Holder justice department, six persons have been prosecuted, their good names taken from them, their lives turned upside down. Mark Mazetti among others has noted the predictable and intended result of the Holder prosecutions: government employees have become exceedingly reluctant to speak with reporters about anything the government does. The intimidation has been comparable in its effect to the Palmer Raids of 1918-1921. None of the quarries fits any common definition of a spy; they were trying to warn the American public of what was done behind their backs. Nor have their activities given information to the enemy so much as they have given eyes and ears to Americans. Yet, in keeping with the pattern of misrepresentation, Holder, when he was asked what element of the crime had necessitated the seizure of AP records, said that the leak "put the American people at risk, and that is not hyperbole."

Nothing known about the case suggests that this description will stand up under examination. A person no more treacherous to American interests than John Brennan revealed at a briefing on the second underwear bomber that US intelligence had "inside control" of the operation all along. Brennan gave that reassurance just after the publication of the AP story; and if a double agent was exposed in the process, it was Brennan himself who spelled out the clue that the AP took care to conceal. This embarrassing fact has been brought to light by Marcy Wheeler, Glenn Greenwald, and others; but it is not yet clear that Holder's deputy has undertaken to seize all possibly relevant records of the emails and phone calls of John Brennan. When one reads the text of the AP story, "CIA Thwarted New Underwear Bomb on Plane Plot," one realizes that the Associated Press was in fact conscientious in never once intimating the presence of a double agent. The story said only that the plot had been foiled. It did, however, bring out in some detail the contradiction between this triumph of detection and the categorical assertions, by the White House and the Department of Homeland Security in preceding days, that there was no evidence of al-Qaeda plans to strike anywhere on the first anniversary of the killing of Bin Laden. It is easy to imagine the resentment of the administration about the unmasking of a serious untruth at the height of the election season.

But such hidden motives only begin to convey the anti-democratic bias that drives the apparatus of secrecy and surveillance. The bias is inherent in any emergency-based charter of public safety. The whole idea of intolerable threats that impose a need for constant protection- -- threats that are made a pretext for undermining the very freedoms guaranteed by the constitution -- must be confronted by the American press and the media if they are to regain the liberty they enjoyed twenty years ago. There will never be a stronger moment than now. The paternal authority of the executive branch has been challenged by the simultaneous demonstration of terrible misjudgments on several fronts. We recognize, as we look with amazement around us, that the president has been liable to keep his watch erratically, and that the attorney general has offered threats and exacted punishments with a heavy hand. And suppose -- though it is far from proved -- that there was a genuine danger from the AP leak. An important and useful fact came out of the published report in any case: namely that the killing in Abbottabad a year before had sharpened al-Qaeda's appetite for revenge. The president, meanwhile, had been telling the American people in 2010, in 2011, and in 2012 that al-Qaeda was all but eradicated. Does a free people have a right to know an unwelcome truth? Does it perhaps have a responsibility to seek out a good many such truths?

The degree of one's belief in paternal government may be tested by the ranking of two sorts of danger. The first, in the present instance, comes from the increased likelihood that a foreign agent may have learned that Americans were on his trail. The second comes from the anxiety Americans would surely feel in learning that al-Qaeda is still active. Eric Holder and Barack Obama judge the second danger to carry a threat to security and safety as great as the threat from al-Qaeda itself. Only in secret, and supported by a happy and satisfied people, can the government go forward with its many works and hunt down enemies of the state. Hence the enthusiasm for new procedures, new justifications, new instruments for the maintenance of order and control. Total protection, which is what they desire on our behalf, may necessitate a degree of secrecy incompatible with the rights of a citizen. But you want to live, don't you? That is their last word in their own defense; and for a convinced paternalist it is unanswerable. Government will tell us all we need to know to keep us safe. Could it be true nevertheless that we Americans are better off to the extent that we know the actual conditions of our lives?