Tuesday, October 10, 2006

Government Secrets

In a comment to a post a couple of days ago to my post on the National Intelligence Estimate, Chris responded that we should elect representatives committed to releasing as much information ‘as possible’ so that we, the voters, can decide how to handle important issues.

I thought it would be useful to add some detail to that idea.

‘As possible’ is a vague phrase. One meaning is that the government should release all information that the laws of physics would allow it to release. In other words, there should be no government secrets.

This yields a statement that is not true. There are examples where it is clearly in our nation's interests that the government keeps certain secrets. During World War II, the allies had captured an enigma machine from the Germans allowing us to decode German communications. It would have been foolish to let the Germans know that we had broken their military codes. It would have been just as foolish for the government to release information that would have caused the Germans to think, "The only way they could have gotten this information is if they had broken our military codes."

It would also be absurd to imagine the nation as a whole participating in a debate as to whether (and when) to invade France. The idea of newspapers publishing aerial reconnaissance photographs and information on military strength so that we, the voter, can decide whether the time is ripe for an invasion is out of the question.

Another possible definition of ‘as possible’ is ‘as possible without sacrificing other, vital national interests.’ This is not an absolute claim. For all practical purposes, this says that we are going to start with the assumption that information is to be released, and put the burden of proof for classifying information on the shoulders of those who want to classify it. The military value of our breaking the enigma code would provide the 'burden of proof' necessary to classify information suggesting that we had broken the code.

This implies that we cannot avoid the fact that politicians have to be allowed to make certain decisions based on information that we do not have access to.

This further implies that we need to pay attention to whether we can trust the people who will have access to that type of information.

Clearly, Chris has an important point - particularly with regard to this administration.

The Bush Administration has a history of lying to the American people. If any employee lied to his boss with the regularity that this Administration lies to the American people, that boss would have lost all trust in that employee. The boss who typically takes the word of an employee who claims to have had a doctor's appointment would be asking this employee for a note from the doctor's office. The boss who typically takes an employee's word as to when the employee comes to the office and leaves will begin having the employee check in and out.

This Administration routinely edits scientific reports - lies about the conclusions that those scientists have reached - rewriting and inventing conclusions to make the report support (or, at least, not condemn) Administration policies. Just two days ago I wrote about how Bush stands up before one audience after another and lies about the nature of the debate between him and his rivals. It is quite clear that this administration cares nothing for the truth and will lie and distort reports to get them to appear to support administration policies.

I want to stress this. Within the Bush Administration a moral 'aversion to deception' does not exist. If it existed, we would find instances in which they sacrificed advantage to tell the truth. I know of no such example.

In the desire-utilitarian model of ethics, we keep people from lying (even when they can get away with it) by giving them an aversion to lying. We keep them from taking our property without our consent (even when they can get away with it) by giving them an aversion to taking property without consent. We can see evidence of whether a person has an aversion to lying and stealing by noting whether he refuses to lie or steal, even when he could have gotten away with it. This way, we learn to trust people.

With the Bush Administration, we get the opposite. We get an Administration that lies even when they can't get away with it. Because it has so little aversion to deception, we have no reason to trust anything that this Administration says or does.

The Administration, by its own admission, released only a portion of the National Intelligence Estimate.

At this stage of the game, only the most gullible fools would deny that this Administration decided what to include and what to keep classified by asking, "Will this passage make us look good, or make us look bad?"

The released NIE report is just another lie.

When an employee gives his employer enough reason to mistrust him, the employer is given reason to ask for more proof than he would normally ask for. An employer who typically trusts that his employees are going to the doctor when the employee says he is may start asking for notes from the doctor's office. An employer who trusts employees to come to work and leave on time may start asking an employee to check in on time.

As is often the case, one 'bad apple' can make the situation worse for everybody. Because one employee misuses sick leave, the corporation adopts a policy that all employees must provide a note from their doctor. Because a handful of employees do not come to work on time or leave early, all employees must check in.

Bush is our employee; we are his employer. Like any employer who has been given more than enough reason to abandon the last shreds of trust in an employee, we now have reason to demand that our employee, Bush, give us some independent verification that what he says is true. Without it, we can dismiss anything he says as just another half-truth or lie used to conceal his incompetence.

Furthermore, prudence indeed shall dictate that we apply these procedures to all future Presidents - that we assume that none of them can be trusted to be honest with us and that we must have some independent verification - where possible - of what is really going on.

At the same time, prudence still dictates that the government keep some secrets.

One upon a time, there was a country quite different from our own, where the people created a 'congress' of elected officials who had the power to make laws - including laws where they could obtain certain types of information. The President had the power to veto those laws. However, if this 'congress' felt strongly enough about the law they could override the President's veto and make a law the President would have to obey.

As you can tell, that system is quite different from our own where the President has the power to rewrite legislation to his liking using 'signing statements' - instruments that allow the President to rewrite any bill to suit his wishes after he signs it, giving the Congress no ability to override his decision.

This was also a country where this 'congress' could require the Executive Branch to submit documents to an entity called a 'court' where a 'judge' would review the documents for 'probable cause' and 'reasonableness'. Again, this is quite different from our system where the President can simply refuse to allow anybody to review or question his decisions.

This procedure whereby the people defended themselves from malicious and tyrannical leaders by having other bodies empowered to review their work was a system these people called 'checks and balances,' and was considered essential to preserving their safety and happiness from all sorts of tyranny. It seems to have worked, since this nation did not suffer under any form of tyranny until these checks and balances were removed.

Ultimately, I think that this forgotten country was one that we could learn some valuable lesson from. They knew that people were not to be trusted with absolute power. Since it is quite clear that we often cannot trust Presidents with the truth, and because it is sometimes unwise for us to be looking over all of the information a President might have available, maybe it would be wise for us to have a system where a 'congress' or 'courts' have the power to collect that information and look it over, to make sure that the President is being honest with us.

So, ultimately Chris is correct – given a few caveats. We should be asking our candidates whether they believe in government of the people. If they believe in government of the people, we need to ask them if the people can make good choices without accurate information. We should ask them whether they disagree with the claim that decision-makers need good information if they are to make good decisions, and what this implies about the government keeping secrets from the people, or altering reports, or filling the country with lies and other forms of deception – all seemingly showing an intent to prevent the people from making informed decisions.

We should be selecting those candidates who agree that the people are the boss of the country and that it is inappropriate (at best) to be concealing information from 'the boss' (other than what 'the boss' says he never wants to see).

We should be choosing candidates who will take a look at these signing statements and be ready to impeach any President who thinks that he has the power to rewrite laws when he signs them. We must select candidates who promise to uphold the rule of law and the principle of checks and balances and who will not further the job of creating an omnipotent executive branch that plants the seeds for this or some future generation to descend into tyranny. We must select candidates who realize that we are the boss and that we have the right to the information we need to cast intelligent votes on the directions we want this country to take.


Anonymous said...

Aren't the signing statements unconstitutional?
Shouldn't the practice of signing statements be reviewed by the Supreme Court?
Could Bush not be impeached for breaking the constitution by using them?
How to push this issue into the general public?

Anonymous said...

Yes, I did mean "possible without outing any CIA agents or other predictable major negative repercussions". Perhaps "possible" was not the best choice of words there.

I was just a little alarmed at your argument that "we don't have enough information to judge". We don't have that information because someone has been deliberately - and selectively - hiding it from us, and that is a major problem in its own right. The people cannot rule if we don't have enough information to make intelligent decisions, and both history and current events show quite clearly that when a small group rules, they do so in their own interests.

I'm glad to see that we agree on this point.

I'd like to go back to that country with the rule of law and a constitution they actually followed, too. I sometimes wonder if there's any hope of that, or if the damage that has been done in the last 5 years is truly irreparable and anyone who believes in the principles of Madison, Jefferson etc. should leave for a country where those principles are still respected - because *that* country is going to be the *next* superpower as this one stagnates and decays like the Soviet Union and every other authoritarian dictatorship.

Alonzo Fyfe said...


While I do not pretend to be a constitutional scholar, I can offer what seems to be the consensus of those I have read.

Signing statements themselves are not unconstitutional. In fact, they typically are written in such a way that they express the Executive Branch's opinion on what is constitutional. In other words, most signing statements say, in effect, "I, the President, consider certain interpretations of this law that I am signing as violations of the Constitution and I refuse to accept those interpretations."

Of course, these signing statements are being written by a President who thinks that the Constitution gives the Chief Executive unlimited power to do whatever he wants, so he considers any legislative limit on executive power 'unconstitutional'. Which is basically what the bulk of Bush's signing statements say - "I, the President, do not have to obey this law or any other law because I am the President." or "It's not illegal if the President does it."

So, the problem is not the signing statement itself, but the political philosophy that Bush writes into his signing statements - the philosophy that the President is above the law.

The only way to repudiate this philosophy is for Congress to prove that it has the will to remove a President who refuses to obey the law, and to show a willingness to do this in the future.

Unfortunately, we are stuck with the fact (shown over the last two Presidencies) that opposing-party Presidents will be impeached for slight offenses, while a President whose party is in control of the Congress, the President can violate the Constitution with near-complete immunity.

This means that "We the people..." those of us who Ordained and established this constitution for the United States of America, to take up our responsibility as its ultimate defenders, and to reject the candidacy of anybody who does not repudiate the President's position that he has unlimited and unchecked power.

Anonymous said...

The President's interpretation of the Constitution is not binding. The Supreme Court is the branch that has full and final authority to interpret the Constitution (as clearly established in Marbury v. Madison, a precedent that has stood without serious challenge for over 200 years).

The President can of course *say* what he thinks is constitutional and unconstitutional, in a signing statement or anywhere else, but must defend those views in court in order to actually gain the right to disregard a law.

The Bush Administration's attempts to evade exactly this kind of court challenges to laws, and just break them whenever he feels like it, are a grave offense against the rule of law in this country. The President is not above the law - indeed, Article II specifically imposes on him the duty to "take Care that the Laws be faithfully executed". But as you point out, a Republican Congress will not act or even speak against a Republican President, regardless of his misdeeds.

"It's OK if you're a Republican" has become something of a cliche joke in liberal circles, but between Bush's violations of the Constitution and now the Foley scandal, I'm beginning to think it really is how Republicans think. They can do no wrong because they are Good People and their actions are therefore *by definition* good, no matter what those actions are.

Alonzo Fyfe said...


The Marbury v. Madison issue has three weaknesses.

(1) The Supreme Court will not decide a case until it is brought before the court by somebody with standing. Until such an event, the President can continue to make and use signing statements. (I wonder if a private citizen can sue the President for violating a law he had rewritten with a signing statement.)

(2) Once the Supreme Court decides a case against the President, there is nothing to keep the President from re-interpreting the Supreme Court decision just as he re-interpreted the original law. That is to say that, “I choose to interpret the Supreme Court’s decision in a manner consistent with my understanding of the Constitutional powers vested in the Executive by the Consitution.”

(3) Samuel Alito, Bush’s most recent Supreme Court appointee, is the one who authored Bush’s doctrine on the use of signing statements. Thomas, Scalia, and (we may assume) Roberts believe that the Supreme Court should defer to the other branches. In fact, it is the court’s job to ENFORCE the law according to the interpretation given the law by those who passed and signed the law. So, we already have 4 justices who would likely consider the signing statements to be valid.