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Two Notes on Secrecy v. Transparency in the National Security World

Jack Goldsmith
Thursday, October 3, 2013, 12:24 PM
Two pieces in the news worth noting on the issue of secrecy v. transparency in the U.S. intelligence world.

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Two pieces in the news worth noting on the issue of secrecy v. transparency in the U.S. intelligence world.  First, The Guardian reports that former DRNSA and CIA Director Michael Hayden said in London:
"It's clear to me now that in liberal democracies the security services don't get to do what they do without broad public understanding and support "And although the public cannot be briefed on everything, there has to be enough out there so that the majority of the population believe what they are doing is acceptable." He added: "My community has to show a lot more leg or we won't get to do any of what we want to do because the public support is so withdrawn that, politically, nobody is going to give us the authorisation." Presidents can do "one-offs" without constitutional authority, he said, but "no president can do something repeatedly over a long term without that broad popular support."
I doubt that Hayden said things precisely this way, but I also expect that the gist of this is right – namely, Hayden thinks the intelligence community needs to recalibrate its tolerance for transparency in order to gain and maintain legitimacy.  As I have argued twice before, this recalibration, which is already well under way, is in my judgment a positive legacy of Snowden’s revelations, and will in the long run enable the NSA to engage in more extensive collection and analysis (at least along some dimensions). Second, Greg Miller of the WP reports that “U.S. officials” say that the CIA “is expanding a clandestine effort to train opposition fighters in Syria amid concern that moderate, U.S.-backed militias are rapidly losing ground in the country’s civil war.”  Miller has many details about what is certainly a covert action – details that come on top of other details that have been pouring out of the USG about our covert support for moderate Syrian rebels for months. Section 413b of Title 50 defines “covert action” as “an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly” (emphasis added).  One can understand why officials might want to talk so much about the covert action – for domestic political consumption, and to influence various factions in Syria and other nations involved with Syria.  But why use the CIA to run a covert action if officials talk about it so openly to journalists?  That is, why not openly and officially acknowledge the aid? Some possibilities:  There may be no other domestic legal basis for US intervention than Section 413b.  One might think that Article II provides a domestic legal basis since the President claims the unilateral authority to bomb Syria.  Under OLC precedents, bombing Syria is easier to justify under Article II than the introduction of ground forces.  But the Article II analysis might well be different for covert paramilitary support from CIA officials (or, possibly, DOD Special Forces operating under Title 50).  In any event, using Section 413b would bolster whatever independent support for the action comes from Article II. *  Perhaps use of the covert action statute is necessary because the action might violate the U.N. Charter.  For reasons no one quite knows for sure, the government appears to think the Charter can be breached more readily by CIA than DOD (or, perhaps more accurately, under Title 50 more than Title 10). *  Maybe the action is covert because other nations participating in the support insist on USG deniability as a condition of participation (though this is frankly hard for me to imagine). *  Perhaps explicit acknowledgment of USG help to the moderate rebels (as opposed to anonymous leaked acknowledgment) would raise the stakes high enough for Syria and its allies that they would feel compelled to retaliate more openly and aggressively. *  Some combination of the above. Whatever the reason for making the support for the rebels covert, the combination of formal covertness and incessant open leaking about the covert action raises all of the legitimacy questions that I have raised before, which in a nutshell come down to this: Why should the government be able to leak about a covert action openly and self-servingly and at the same time keep the program officially secret from the American people, who might want to analyze and debate the appropriateness and efficacy of what the USG is doing, and the accuracy of its representations? I don't think the USG has a good answer to that question.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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