Tag Archives: secrecy

The secret history of the Manhattan Project

By Christopher B. Daly 

Better late than never: the U.S. government has finally declassified its official history of the Manhattan Project, the vast and Screen Shot 2014-09-30 at 3.16.57 PMsecret program undertaken during World War II to build an atom bomb. (Which was intended, first and foremost, for use against Germany, but as it happened, the bomb was not ready by V-E day in May of 1945, so it ended up being used against Japan in August.)

As it happens, the Manhattan Project was a major focus of my master’s thesis in U.S. History at UNC-Chapel Hill back in the 1980s. At that time, none of these documents were available. Instead, I had to rely mainly on Hewlett and Anderson’s multi-volume history of the Atomic Energy Commission, which was the main successor to the Manhattan Project and which oversaw the conversion of the bomb-making project into two new, separate enterprises: military efforts to make bigger and better bombs and civilian efforts to make cheap nuclear energy available.

Even after all these years, it is still remarkable how few “atomic secrets” slipped out during WWII and reached hostile powers. Of course, that depends on how you define such secrets and how you define hostile powers. In one sense, there is no “atomic bomb secret.” Before the war, physicists had pretty well worked out the basic science of atomic fission. After that, it’s all engineering, and there are in fact many different ways to apply the science to create weapons. The issue of “hostile powers” turns out to have been the more vexing issue. During the war, the U.S. naturally worried about maintaining secrets from the Germans and the Japanese, our avowed enemies. They did not pay enough attention to maintaining secrets from the Soviets, our putative allies.

I have no intention of re-fighting the Cold War battles over atomic espionage (in which a small number of misguided leftists cooperated with Soviet spies and probably made the world a worse place).

All I want to do today is draw attention to the belated but still welcome declassification of this report.

BUT NOTE: there are almost certainly more parts that the government has not declassified and will not even acknowledge. That’s the nature of secrecy. 

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Govt. releases memo giving legal reasons for killing Americans overseas

By Christopher B. Daly 

Finally, under court order, the Obama administration has divulged its legal rationale for killing Americans abroad without trials, charges, or even arrests. That reasoning appears in a contested legal memo written four

Al-Alawki in 2010.  Getty.

Al-Awlaki in 2010.
Getty.

years ago in the Office of Legal Counsel offering arguments that would justify using a drone to take out Anwar al-Awlaki — who was an American citizen living (hiding?) in Yemen and fomenting attacks against you and me and our country.

Leaving aside (for the moment) whether al-Awlaki deserved to die in a drone strike, it was an offensive outrage that the Obama administration not only had a secret plan for killing Americans abroad but they also had a secret rationale for doing it, and they said no mere citizen could even read those arguments. Now, we mere citizens can read them for ourselves.

You can find the court ruling ordering the memo’s release and the arguments themselves here, thanks to the Times. That is, we can sort of read the memo. The ruling by the 2nd Circuit Court of Appeals allowed the government some wiggle room so that officials could redact (i.e., “censor”) some parts that pertained to secret stuff the government knew about al-Awlaki through the fruits of spying on him. That makes a certain amount of sense, I guess, but any time that the government is allowed to redact its own documents, you have to wonder what’s missing.

In any case, the president should long ago have made this argument himself, in public. If he believes in it, then he owns it. It is his duty to protect and defend the Constitution and, therefore, to show why his actions are in conformance with his understand of the Constitution. If he makes the case and the people accept it, fine. If he makes his case and the people reject it, then he’s got a problem. But there is no reading of the Constitution that authorizes the president to carry out a secret assassination program and not tell anyone about it.

For now, I will pass on the question of whether al-Awlaki had it coming and whether Obama has a legal leg to stand on. I want to read the document and think it over. The policy might be acceptable, but what was not acceptable was the secrecy.

Meanwhile, kudos to the Times‘ Charlie Savage and Scott Shane, who are named among the plaintiffs who pried this decision out of the courts, along with the Times itself and the ACLU. No matter what we each think about the president and his policies, these plaintiffs have done the whole country a service. Thank you.

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Surveillance state: The rationale for secrecy is, of course, SECRET

By Christopher B. Daly

top-secret-stampYou may think you are a sovereign citizen of a free country. You may think that “we, the people” rule through elected representatives who are accountable to us. But that would be wrong.

The latest affront to self-government is a ruling issued by a federal appeals court on Friday (beware of Friday rulings). Here’s the background:

Thanks to accused leaker Edward Snowden, we know that the U.S. government runs a secret program in which the government calls on the telephone companies to hand over information about you without a court order or subpoena, even if you are not suspected of any wrongdoing. You were not supposed to know about it, but that cat is now out of the bag.

So, you might want to know where the government gets off concocting such a scheme and how it could possibly square such massive, secret, peacetime spying on law-abiding citizens with the Constitution. Well, too bad. The Obama administration’s lawyers, who wrote a memo in 2010 attempting to justify the whole thing, decided that the memo itself should be kept secret, and President Obama agrees.

The Electronic Frontier Foundation and others filed suit seeking to get access to the memo. The government refused. On Friday, Judge Harry T. Edwards said no. EFF can’t see it and neither can we, the people. According to a link-rich story in today’s Times by the redoubtable Charlie Savage, the ruling seems likely to stand.

This is just the latest cause for disappointment in President Obama when it comes to transparency and press freedom. If he wanted to really serve those great causes, he could:

–stop prosecuting and issuing subpoenas to reporters at an unprecedented pace

–stop over-classifying new material as “secret”

–begin reducing the backlog of classified materials that can be de-classified with no harm

–adopt the common-sense reforms recommended by his own task force on surveillance issues.

There are many things to admire about Barack Obama, but his record in this area is not one of them Perhaps it confirms that the Founders were right to be suspicious of executive power per se, regardless of the individual wielding that power. They saw, rightly, that power is by its very nature aggressive, always seeking to expand and never yielding unless forced to do so.

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Obama welcomes debate . . . on his secret program

By Christopher B. Daly 

President Obama says that when it comes to deciding on the wisdom of the government’s vast data-mining operations, “I welcome this debate.” What he did not say is that we could not have such a debate unless journalists reported on leaks of classified information. The executive branch’s Plan A was to do all this in secret and never debate it.

Here is a transcript of his remarks Friday on the subject. Taken as a whole, it is quite thoughtful, nuanced, and worth considering. But it is based on a fundamentally misleading premise (which I have highlighted in bold).

 

Obama’s Remarks on Health Care and Surveillance

The following is a [partial — cbd] transcript of President Obama’s remarks about the health care overhaul and response to a question about electronic surveillance in San Jose, Calif., as provided by the White House:

 

QUESTION: Mr. President?

 

MR. OBAMA: I’m going to take one question. And then, remember, people are going to have opportunities to also — answer questions when I’m with the Chinese President today. So I don’t want the whole day to just be a bleeding press conference. But I’m going to take Jackie Calmes’ question.

 

QUESTION: Mr. President, could you please react to the reports of secret government surveillance of phones and Internet? And can you also assure Americans that the government — your government doesn’t have some massive secret database of all their personal online information and activities?

 

MR. OBAMA: Yes. When I came into this office, I made two commitments that are more important than any commitment I made: Number one, to keep the American people safe; and number two, to uphold the Constitution. And that includes what I consider to be a constitutional right to privacy and an observance of civil liberties.

 

Now, the programs that have been discussed over the last couple days in the press are secret in the sense that they’re classified. But they’re not secret in the sense that when it comes to telephone calls, every member of Congress has been briefed on this program. With respect to all these programs, the relevant intelligence committees are fully briefed on these programs. These are programs that have been authorized by broad bipartisan majorities repeatedly since 2006.

 

And so, I think at the outset, it’s important to understand that your duly elected representatives have been consistently informed on exactly what we’re doing. Now, let me take the two issues separately.

 

When it comes to telephone calls, nobody is listening to your telephone calls. That’s not what this program is about. As was indicated, what the intelligence community is doing is looking at phone numbers and durations of calls. They are not looking at people’s names, and they’re not looking at content. But by sifting through this so-called metadata, they may identify potential leads with respect to folks who might engage in terrorism. If these folks — if the intelligence community then actually wants to listen to a phone call, they’ve got to go back to a federal judge, just like they would in a criminal investigation.

 

So I want to be very clear — some of the hype that we’ve been hearing over the last day or so — nobody is listening to the content of people’s phone calls. This program, by the way, is fully overseen not just by Congress, but by the FISA Court — a court specially put together to evaluate classified programs to make sure that the executive branch, or government generally, is not abusing them, and that it’s being carried out consistent with the Constitution and rule of law.

 

And so, not only does that court authorize the initial gathering of data, but — I want to repeat — if anybody in government wanted to go further than just that top-line data and want to, for example, listen to Jackie Calmes’ phone call, they would have to go back to a federal judge and indicate why, in fact, they were doing further probing.

 

Now, with respect to the Internet and emails — this does not apply to U.S. citizens and it does not apply to people living in the United States. And again, in this instance, not only is Congress fully apprised of it, but what is also true is that the FISA Court has to authorize it.

 

So in summary, what you’ve got is two programs that were originally authorized by Congress, have been repeatedly authorized by Congress, bipartisan majorities have approved on them, Congress is continually briefed on how these are conducted. There are a whole range of safeguards involved, and federal judges are overseeing the entire program throughout. We’re also setting up — we’ve also set up an audit process, when I came into office, to make sure that we’re, after the fact, making absolutely certain that all the safeguards are being properly observed.

 

Now, having said all that, you’ll remember when I made that speech a couple of weeks ago about the need for us to shift out of a perpetual war mindset, I specifically said that one of the things that we’re going to have to discuss and debate is how are we striking this balance between the need to keep the American people safe and our concerns about privacy? Because there are some tradeoffs involved.

 

I welcome this debate. And I think it’s healthy for our democracy. I think it’s a sign of maturity, because probably five years ago, six years ago, we might not have been having this debate. And I think it’s interesting that there are some folks on the left but also some folks on the right who are now worried about it who weren’t very worried about it when there was a Republican President. I think that’s good that we’re having this discussion.

 

But I think it’s important for everybody to understand — and I think the American people understand — that there are some tradeoffs involved. I came in with a healthy skepticism about these programs. My team evaluated them. We scrubbed them thoroughly. We actually expanded some of the oversight, increased some of safeguards. But my assessment and my team’s assessment was that they help us prevent terrorist attacks. And the modest encroachments on the privacy that are involved in getting phone numbers or duration without a name attached and not looking at content, that on net, it was worth us doing. Some other folks may have a different assessment on that.

 

But I think it’s important to recognize that you can’t have 100 percent security and also then have 100 percent privacy and zero inconvenience. We’re going to have to make some choices as a society. And what I can say is that in evaluating these programs, they make a difference in our capacity to anticipate and prevent possible terrorist activity. And the fact that they’re under very strict supervision by all three branches of government and that they do not involve listening to people’s phone calls, do not involve reading the emails of U.S. citizens or U.S. residents absent further action by a federal court that is entirely consistent with what we would do, for example, in a criminal investigation — I think on balance, we have established a process and a procedure that the American people should feel comfortable about.

 

But, again, these programs are subject to congressional oversight and congressional reauthorization and congressional debate. And if there are members of Congress who feel differently, then they should speak up. And we’re happy to have that debate.

 

Okay? All right. And we’ll have a chance to talk further over the course of the next couple of days.

 

QUESTION: Do you welcome the leaks, sir? Do you welcome the leaks? Do you welcome the debate?

MR. OBAMA: I don’t welcome leaks, because there’s a reason why these programs are classified. I think that there is a suggestion that somehow any classified program is a “secret” program, which means it’s somehow suspicious.

The fact of the matter is in our modern history, there are a whole range of programs that have been classified because — when it comes to, for example, fighting terror, our goal is to stop folks from doing us harm. And if every step that we’re taking to try to prevent a terrorist act is on the front page of the newspapers or on television, then presumably the people who are trying to do us harm are going to be able to get around our preventive measures. That’s why these things are classified.

But that’s also why we set up congressional oversight. These are the folks you all vote for as your representatives in Congress, and they’re being fully briefed on these programs. And if, in fact, there was — there were abuses taking place, presumably those members of Congress could raise those issues very aggressively. They’re empowered to do so.

We also have federal judges that we put in place who are not subject to political pressure. They’ve got lifetime tenure as federal judges, and they’re empowered to look over our shoulder at the executive branch to make sure that these programs aren’t being abused.

So we have a system in which some information is classified, and we have a system of checks and balances to make sure that it’s not abused. And if, in fact, this information ends up just being dumped out willy-nilly without regard to risks to the program, risks to the people involved — in some cases, on other leaks, risks to personnel in a very dangerous situation — then it’s very hard for us to be as effective in protecting the American people.

That’s not to suggest that you just say, trust me; we’re doing the right thing; we know who the bad guys are. And the reason that’s not how it works is because we’ve got congressional oversight and judicial oversight. And if people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution, due process and rule of law, then we’re going to have some problems here.

But my observation is, is that the people who are involved in America’s national security, they take this work very seriously. They cherish our Constitution. The last thing they’d be doing is taking programs like this to listen to somebody’s phone calls.

And by the way, with respect to my concerns about privacy issues, I will leave this office at some point, sometime in the last — next three and a half years, and after that, I will be a private citizen. And I suspect that, on a list of people who might be targeted so that somebody could read their emails or listen to their phone calls, I’d probably be pretty high on that list. It’s not as if I don’t have a personal interest in making sure my privacy is protected.

But I know that the people who are involved in these programs, they operate like professionals. And these things are very narrowly circumscribed. They’re very focused. And in the abstract, you can complain about Big Brother and how this is a potential program run amuck, but when you actually look at the details, then I think we’ve struck the right balance.

Thank you very much, guys.

 

 

 

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Obama: Wrong on spying, secrecy, leaks.

By Christopher B. Daly

imgres3The outrages just keep piling up. President Obama, Attorney General Eric Holder, and their advisers just don’t get it: the government exists to help the people do the things they want to do but can’t do without joining together. It does not exist for its own sake. It does not exist to expand its own power. It does not exist to spy on its own citizens. As liberals, lawyers, and constitutional scholars, they should know all this. What is wrong with these people?

The latest scandal involves the notorious NSA (for “No Such Agency”). As Glenn Greenwald disclosed in a Guardian exclusive, the NSA is collecting phone records from Verizon for every call made by every Verizon customer, domestic and international. To quote Greenwald:

The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.

 As they run for cover, the officials involved are going to claim that “it’s all perfectly legal,” because they got a judge to sign off on it, through the special courts set up by the Foreign imagesIntelligence Surveillance Act. (FISA) This is one of many legacies of the over-reaction to the 9/11 attack and the Bush administration’s ensuing “war on terror.” In the name of fighting terror, which is diminishing, U.S. officials in Congress, the executive branch, and the courts have

–unleashed a secretive spy agency

–to spy on Americans

–using a legal OK from a secret court.

It should be noted that, of course, the whole operation is secret. We were never supposed to learn that our phone records are being routinely collected on a vast scale. (Note: as far as we know, they are not recording the content of those calls, only metadata such as the number being called, timing, duration, location, etc.) If it were not for an investigative reporter ferreting out stuff he is not supposed to find out, we the people would never know about this.

It’s possible that the American people, informed of this huge data grab, will decide this is a good and wise thing to do. Fine. If that’s the consensus, I will abide by that. But we at least deserve to know what’s going on and debate whether it is a wise use of our government’s power.

On the subject of leaks, here is a thought exercise: what disclosures of information would you rather NOT know about? Would you want to close your eyes to Abu Gharib? the “Fast and Furious” screw-up? The IRS abuses?

There are countries where secrets stay secret, and I would not want to live in any of them.

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The NSA case brings up another question: why do the telecom companies roll over so readily every time the government comes calling?

Here is a report from the indispensable Electronic Frontier Foundation showing which companies turn over what kinds of data.

Here is an analysis from TNR about why the telecoms are different from social media companies. Worth considering.

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Another question: Does the NSA data grab include phone records for the White House? For the Holder residence? For the home or office numbers of the members of the House and Senate images-1Intelligence committees? For any journalists who have perfectly good reasons to make phone calls to Yemen, Somalia, Pakistan and other terror hideouts? Does it include the home phone of the judge who signed the secret order?

 

One more: Does no one remember the Church committee hearings or findings?

Sheesh. 

 

 

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The case against Obama on secrecy

By Christopher B. Daly

imgres3It gives me no satisfaction to say that President Obama has been worse than disappointing when it comes to his treatment of journalists (and their sources) or his retreat from transparency (and thus accountability) in government.

It has to be said: The president has engaged in “a long train of abuses . . . pursuing invariably the same Object.”

The case against him is laid out in this open letter from whistleblowers, posted in the Guardian. This is the most comprehensive indictment I have seen to date.

In his lengthy speech yesterday about how he sees the war on terror, Obama threw in a brief passage near the end about the collateral damage that the war on terror is doing to the news media. It strikes me as too little, too late. Here it is:

The Justice Department’s investigation of national security leaks offers a recent example of the challenges involved in striking the right balance between our security and our open society. As Commander-in Chief, I believe we must keep information secret that protects our operations and our people in the field. To do so, we must enforce consequences for those who break the law and breach their commitment to protect classified information. But a free press is also essential for our democracy. I am troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable.

Journalists should not be at legal risk for doing their jobs. Our focus must be on those who break the law. That is why I have called on Congress to pass a media shield law to guard against government over-reach. I have raised these issues with the Attorney General, who shares my concern. So he has agreed to review existing Department of Justice guidelines governing investigations that involve reporters, and will convene a group of media organizations to hear their concerns as part of that review. And I have directed the Attorney General to report back to me by July 12th.

We’ll see what Eric Holder comes up with. But based on his record, I don’t expect much. So far, Holder has been part of the problem, not part of the solution.

 

 

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Obama wavering on secrecy

By Christopher B. Daly

Slowly, but perhaps inevitably, President Obama is yielding to public pressure and taking baby steps toward the transparency he promised all along. He has said he will allow the leaders of the House andimgres3 Senate Intelligence Committees to look at the legal memo that purports to justify the administration’s policy of killing Americans overseas under certain conditions using unmanned drones.

Can a leak of the document be far behind?

Even after that happens (as seems equally inevitable), I want to know:

–What authorizes Obama to make this policy on his own?

–What authorizes Obama to pick the targets for assassination?

–What authorizes Obama to hide this policy and dribble it out only when cornered by the people?

He was supposed to be a leader in the campaign for transparency, not a reluctant truant. Oh, well. Sometimes the people have to lead the leaders.

Famous drone target.

Famous drone target.

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