Maher Arar and government overreaching on secrecy.

The law, lawyers, and the court.
Aug. 14 2007 3:01 PM

Secret Insecurity

Self-serving hush-ups, in Canada and the United States.

Maher Arar. Click image to expand.
Maher Arar and his wife

To borrow from Mark Twain, there are three types of lies: lies, damned lies, and national security claims.

Take the case of suspected terrorist Maher Arar, a Syrian-born Canadian citizen detained by the United States in 2002 while changing planes at Kennedy International Airport. Last week, a Canadian court ordered the release of previously classified information about Arar's case, which turned into a debacle when he was shipped to Syria, where he was tortured and imprisoned for nearly one year. In the end, the suspicion that Arar was a terrorist proved ill-founded, and in January the Canadian government coupled its apology for the injustice he'd suffered with $10.9 million in compensation and payment of legal fees.

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Yet after the court ordered the release of the information about Arar that had been kept secret, the same Canadian government insisted that the disclosures would mean the ruination of national security. What that fear really betrays is a mindset that the rising and setting of the sun is a state secret.

The Canadian government opposed revealing that the CIA, not the FBI, decided to deport Arar. It fretted over disclosing that the operations director of the Canadian Security Intelligence Service authored a memo 15 days after Arar's arrest opining that "the U.S. would like to get Arar to Jordan where they can have their way with him." The Canadians also objected to unbosoming that the Syrians considered Arar "more of a nuisance than anything else"; and that information extracted by severe abuse or torture in Syria from another Canadian, Ahmad El-Maati, was exploited by the Royal Canadian Mounted Police to persuade a judge to authorize a wiretap. As John Ibbitson wrote in the Globe and Mail last week: "National security my ass. Foreign affairs, CSIS and especially the RCMP were simply trying to keep hidden their incompetent, duplicitous, and disgraceful handling of the Arar file. And they are still at it."

Counterparts to the Canadian government's secrecy fetish abound in the United States. To wit:

President Bush continues to conceal the legal advice he received after 9/11 to justify the National Security Agency's euphemistically styled Terrorist Surveillance Program, which contravenes the Foreign Intelligence Surveillance Act of 1978 (or did, before Congress gutted key parts of FISA earlier this month). According to the president, to disclose the rationale for the TSP—the claimed unitary executive theory of the Constitution—would expose operational details. But al-Qaida's tactics are uninfluenced by what legal doctrine purports to authorize a method of spying.

When the New York Times published an account of the existence of the TSP in December 2005, based on a leak from the executive branch, President Bush accused the newspaper of semi-treason. He fancifully asserted that al-Qaida would maneuver to evade the TSP armed with the new knowledge that the NSA was spying without warrants. But again, al-Qaida was not born yesterday. Indeed, everyone in the Middle East assumes that both his government and foreign governments are spying on him, and he adapts his communications accordingly. President Bush instantly discredited his own accusation that the Times had impaired the utility of the TSP by ordering its continuation. Not a crumb of evidence has emerged in the 20 months since to substantiate any harm to national security.

The pattern of unsubstantiated finger-pointing repeats itself. After USA Today disclosed a spying program companion to the TSP, data mining involving telephone records, the president asserted that the publicity would compromise national security. But no cogent evidence demonstrated that the publicity made the United States less safe. The president also harshly condemned the Times' publication of another warrantless program, which obtained financial records of suspected terrorists through the SWIFT international banking consortium. It was suggested that without the publicity, terrorists would have been unguarded in their financing arrangements and that the SWIFT disclosures first clued in the terrorists to the need to conceal their financial tracks. But no evidence has ever been forthcoming to substantiate the claims. International terrorists, like al-Qaida in its way, are sophisticates.

When Congress held hearings on the TSP, the president invoked national security to justify concealing such basic information as the number of Americans who had been targeted for warrantless surveillance, the number of terrorist plots that had been thwarted in whole or in part by the TSP, and the intelligence that could not have been collected except by violating FISA. Suppose 10,000 Americans had been targeted by the TSP. How could the outing of that number assist international terrorists?

Consider also the reasoning of a FISA court ruling earlier this year that warrants are required to intercept foreign-to-foreign communications that transit the United States. Understanding the FISA court's rationale should have been central to informed public and congressional debate over the president's demand that Congress eviscerate privacy protections safeguarded by FISA, as lawmakers did in passing the Protect America Act this month. Yet President Bush insisted then and continues to insist that even the disclosure of a redacted version of the FISA court's opinion would endanger national security. At the same time, the president leaked a copy to Republican House Minority Leader John Boehner to skew the debate over the new law in his favor.

There's more in this self-serving vein, of course: President Bush and Vice President Cheney first maintained that intelligence regarding Iraq's weapons of mass destruction required secrecy. The two then collaborated to leak to the press through Karl Rove and Scooter Libby instantly declassified WMD information with the intent to destroy the credibility of their detractor, Joseph Wilson.

The fundamental point is that secrecy—not disclosure—regularly impairs national security. It promotes groupthink that spawns foolhardy endeavors like President John F. Kennedy's Bay of Pigs invasion or this president's democratization of Iraq. Secrecy also undermines public faith in the probity of government—the faith necessary to sustain protracted foreign engagements. And so national security is best secured by skepticism about demands for secrecy based on national security. And so I end with this question: Can you think of a single national security disclosure that seriously damaged the nation?

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