Is America's classification system legitimate? When leakers subvert it, should citizens cheer or condemn them? State secrets kept by the U.S. government have been under attack, most famously by Julian Assange, Chelsea Manning, and Edward Snowden. Tens of millions of Americans defend at least some of their revelations, illegal or not—to the consternation of national-security-state officials and their allies, who have responded by defending America's classification system.
For the Obama Administration, this has meant an unprecedented effort to punish leaks it didn't opportunistically order with criminal inquiries and prosecutions. Some members of Congress have taken to denouncing leakers as traitors. And at venues like Lawfare, a group blog for the national-security establishment, the customary argument is that "the United States has the most expensive, elaborate, and multi-tiered intelligence oversight apparatus of any nation on Earth." There's no need for illegal leaks. Existing oversight is adequate.
But is it?
A lot of people think that the fight over the CIA-torture report suggests otherwise—that it shows an obvious, absurd flaw in way our government decides what information ought to be public, and that new leaks would be justified to remedy that flaw.
I find it hard not to agree.
By way of background, the Senate spent several years and millions of dollars studying the interrogation of War on Terrorism prisoners during the Bush Administration, addressing both whether torture was perpetrated and whether the methods used were effective at eliciting useful intelligence. That report has been suppressed for well over a year. Last week, the Senate Intelligence Committee voted to make a very small portion of the finished report public. Even those pages are still secret, pending a declassification review by the White House.
Most objectionable of all: the fact that the White House and Congress both agree that the CIA should play a significant, influential role in the declassification process.
Think about that for a minute.
This report apparently suggests that the CIA used ineffective interrogation techniques and lied about them to Congress, arguably jeopardizing the very counterterrorism efforts intended to keep us safe. It suggests that CIA employees perpetrated acts that are not only illegal but that the United States government is bound by treaty to investigate and prosecute. The report also suggests that the CIA engaged in behavior that many Americans regard as morally abhorrent and shameful. The CIA has as significant and intractable a conflict of interest here as any imaginable. Surely it shouldn't be given a black highlighter to use on the report.
Yet the intelligence agency is playing precisely that role.
Little wonder that some are reacting like the Freedom of the Press Foundation's Trevor Timm. Under the headline "Leak the CIA report: it's the only way to know the whole truth about torture," he writes, "Parts of the report are now in the hands of Senate staffers, White House officials, State Department employees, CIA spooks and soon maybe more. It would not come without great personal risk, but the American people may only be served well if someone with a conscience is brave enough to leak the full report and hold the CIA accountable for its crimes."
After all, he notes:
Leaks have been critical to the public knowledge of Bush-era torture since the first hints of Abu Ghraib, and as longtime torture investigator Katherine Hawkins noted, "The Senate report would likely never have existed ... if it were not for previous investigations by journalists and non-governmental organizations."
Once again, CIA misbehavior is prompting concerned Americans to call for leaks.
Of course, the public doesn't need to read every word in the torture report. If it includes the names of CIA agents, for example, I'd have no objection to blacking them out, as I presume the New York Times or the Washington Post would do if it were leaked to them. There may well be other parts of the report that should stay classified too. Anyone who gets their hands on it should consult with the government before publication. But in this case, I trust newspaper reporters and editors much more than the CIA to decide what information is in the public interest to release. Likewise, I trust Glenn Greenwald more than CIA Director John Brennan. After all, only one of them served high up in the CIA during the torture years.
Meanwhile, national-security-establishment figures trust the CIA to play a significant role in the declassification process, despite their gargantuan conflicts of interest.
Why should any of us put our faith in a process that would allow such a conflict of interest? The most effective argument for leakers and transparency isn't made by Assange or Greenwald or Snowden; it's made unwittingly, by the CIA and its overseers.
National-security-state officials have worked hard, in the wake of the Snowden revelations, to convince Americans that the classification system is legitimate. They ought to be angriest of all at this abuse. But they aren't angry at the CIA or its overseers. They can't be counted on to maintain the integrity of intelligence oversight. More transparency really is the only way Americans can prevent horrific abuses from being buried. I don't know if the CIA report will ever be leaked in full. But if that leak ever happens, those who let the CIA vet it will share the blame.