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Friedersdorf writes: "Being labeled a suspected terrorist can roil or destroy a person's life-yet Team Obama kept adding people to the list using opaque standards that were never subject to democratic debate. Americans were denied due process. Innocent people were also put on a no-fly list with no clear way to get off."

Edward Snowdwn in Moscow. (photo: Washington Post)
Edward Snowdwn in Moscow. (photo: Washington Post)

When the Public Has a Right to Classified Information

By Conor Friedersdorf, The Atlantic

29 October 14


The anonymous whistleblower who leaked details about the terror watchlist served the national interest.

onths ago, The Intercept reported that "nearly half of the people on the U.S. government’s database of terrorist suspects are not connected to any known terrorist group." Citing classified documents, Jeremy Scahill and Ryan Devereaux went on to report that "Obama has boosted the number of people on the no fly list more than ten-fold, to an all-time high of 47,000—surpassing the number of people barred from flying under George W. Bush." Several experts were quoted questioning the effectiveness of a watch list so expansive, echoing concerns expressed by the Associated Press the previous month as well as the ACLU.

The Intercept article offered a long overdue look at one of the most troubling parts of the War on Terrorism. Being labeled a suspected terrorist can roil or destroy a person's life—yet Team Obama kept adding people to the list using opaque standards that were never subject to democratic debate. Americans were denied due process. Innocent people were also put on a no-fly list with no clear way to get off.

As the ACLU put it, "The uncontroversial contention that Osama bin Laden and a handful of other known terrorists should not be allowed on an aircraft is being used to create a monster that goes far beyond what ordinary Americans think of when they think about a 'terrorist watch list.' If the government is going to rely on these kinds of lists, they need checks and balances to ensure that innocent people are protected." The status quo made the War on Terror resemble a Franz Kafka novel.

On Tuesday, Michael Isikoff reported that the FBI has identified a federal contractor suspected of leaking the classified documents The Intercept cited in its story:

The FBI recently executed a search of the suspect's home, and federal prosecutors in Northern Virginia have opened up a criminal investigation into the matter, the sources said. But the case has also generated concerns among some within the U.S. intelligence community that top Justice Department officials—stung by criticism that they have been overzealous in pursuing leak cases—may now be more reluctant to bring criminal charges involving unauthorized disclosures to the news media, the sources said. One source, who asked not to be identified because of the sensitivity of the matter, said there was concern "there is no longer an appetite at Justice for these cases."

That quote is hard to parse. Was anonymity granted to government sources so that they could offer unauthorized leaks complaining about disinterest in prosecuting unauthorized leaks? Or was this an authorized leak from an intelligence community trying to pressure the Justice Department using the cover of anonymity? Either way, the concerns of these intelligence sources should be ignored. If the DOJ is reluctant to prosecute here, it's absolutely right to be.

The information revealed by The Intercept should never have been treated as a state secret. Federal authorities are trying to figure out who leaked a classified document, but they ought to be identifying whoever was responsible for wrongly classifying it in the first place. Its contents do not threaten national security. Suppressing them was an affront to democracy that undermined accountability in government.

The bad actors are the ones who kept it secret.

The opaque watch lists of the Bush and Obama administrations are flagrant examples of the over-classification long thought to be endemic in Washington, D.C. Exposing them as such served the public interest. As with Watergate, the Pentagon Papers, and FBI persecution of anti-Vietnam protestors, whistleblowers and journalists have once again proved better than government at judging how best to navigate the tension between state secrets and democracy.

Most self-described advocates of law and order who insists on the need to prosecute Edward Snowden and this second leaker ignore a key feature of their civil disobedience: These whistleblowers leaked in part to expose more serious lawbreaking.

It is perverse to target them while ignoring the lawbreakers they exposed.

The only reasonable argument for prosecuting the whistleblower who leaked this watch-list document is that, regardless of the salutary consequences, a duly enacted law was broken. Some people maintain that the rule of law is threatened if any lawbreaking goes unpunished, regardless of context. But that is not an argument that the intelligence community or its apologists can credibly make until they also begin advocating for the punishment of all perjurers, torturers, and civil-rights violators in their midst, as well as leakers who talk to reporters while advancing an establishment line. Does anyone take that internally consistent position? Anyone who surveys lawbreaking in the national-security bureaucracy and insists on legal consequences only for its whistleblowers makes a mockery of the rule of law. your social media marketing partner


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+6 # RMDC 2014-10-29 20:41
I agree -- the bad actors are the ones who kept it secret. I find any government secrets odious in a democratic society. I'm not talking about the personal information the social security administration has on all Americans. I'm talking about policy decisions and conspiracies by government officials. Many of these are secret because they violate laws.

Democratic governments derive all of their powers from the consent of the governed. Obviously Americans don't give their consent to things they don't know about. But America has never been a democracy anyway. It has always been an oligarchy. It uses the idea of democracy to keep the masses in line.
+8 # John S. Browne 2014-10-29 21:45

It's McCarthyism blacklisting on steroids, and it's only going to be expanded and made worse by the increasingly "witchhunting" and "demonizing" U.S. government, which has more and more of a penchant for destroying innocent peoples lives, especially if they're nothing-but-con stitutional-and -legal dissenters against this totalitarian militarized police state madness taking over the United States, and defenders of True Freedom and Liberty!

The U.S. government no longer resembles at all the constitutional republic that it was ONLY created to be, but instead increasingly resembles totalitarian states like China, the former Soviet Russia, East Germany and Nazi Germany, etc.! It becomes more and more clear that such is absolutely no exaggeration whatsoever, and increasingly obvious that it is getting worse and worse!

At this rate, if it isn't already, the U.S. will no longer be a safe country to reside in at all! That's where we're headed; if, as I said, we aren't already there! Wake up, people, and fulfill your duty(ies) to save your country before we're an apartheid open-air-prison police state across the entire length and breadth of the country; like, but far worse than, apartheid Israel and former South Africa! Because, if we don't save our country from this extremely hideous fate, that too is where we're headed!

Dear God, please help us and save us from this hell-on-earth!

+2 # walthe310 2014-10-30 19:45
Edward Snowden was right to flee the US after releasing information about NSA spying on Americans. This is made very clear by James Risen in his new book, Pay Any Price, Greed, Power and Endless War. Our government's bent for secrecy is used to cover waste and law-breaking activities from public scrutiny. It remains for private citizens to supply the discipline that the government cannot or will not supply itself.

This is what Risen has to say about the NSA (National Security Agency):

"A stunning 80 percent of NSA personnel have been identified as ISTJ (Introverted Sensing Thinking Judging) types on The Myers-Briggs personality profile test. That meant that the NSA was filled with quiet people who valued tradition, order, and loyalty; who were organized and methodical; who believed in procedures and plans and respected rules. They were people who believed in going by the book. The joke was that an extrovert at the NSA was someone who looked down at your shoes while talking, instead of his own."

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